Introduction to Volume 7

In this volume—Volume 7—we look specifically at the role the criminal and civil justice systems, including redress schemes, play in responding to child sexual abuse. We examine how these systems might better serve victim-survivors of child sexual abuse in government institutions. The two chapters in this volume discuss the criminal and civil systems in turn. We note that while the former is focused on holding individual perpetrators to account and the latter has a broader focus on institutional accountability, they are not mutually exclusive options for victim-survivors seeking recourse for child sexual abuse.

In Chapter 16, we consider recent reforms to criminal justice responses to child sexual abuse in institutional settings and what further reforms are needed. While the criminal justice system is an important mechanism for holding perpetrators of child sexual abuse to account, it is an adversarial system. It is not always equipped to respond to the complex and sensitive issues that arise for victim-survivors of child sexual abuse. However, there are many ways the system’s limitations can be alleviated. For this reason, we make recommendations directed at:

• police specialisation
• training and professional development for the Office of the Director of Public Prosecutions
• improving the law (noting significant and welcome change has already been achieved)
• improving rules of evidence and court procedures
• improved monitoring of the performance of the justice system in relation to child sexual abuse.

In Chapter 17, we assess the effectiveness of the three main pathways available in Tasmania to victim-survivors seeking recompense from the State for the sexual abuse they suffered as children. These pathways are the National Redress Scheme, civil litigation and victims of crime compensation. Relevant to our assessment of these pathways is a consideration of the accessibility of information and records the Government and its institutions hold. In this chapter, we also consider the importance to victim-survivors of receiving a personal apology for the sexual abuse perpetrated against them in government institutions. We make recommendations to ensure:

• redress options are available to victim-survivors into the future
• Government lawyers take a trauma-informed approach to managing settlement processes in child sexual abuse cases
• victim-survivors of child sexual abuse in institutional contexts can access their records
• rights for victim-survivors of child sexual abuse are increased under the Victims of Crime Assistance Act 1976
• victim-survivors receive an apology from the Government if they request one.

A note on language

In other chapters of our report, we generally use the terms victim-survivor and perpetrator or abuser. However, in this chapter, we also use the terms complainant, accused person, alleged offender and offender because they have particular meanings in the criminal justice system. A reference to victim-survivors is a reference to child and adult victim-survivors, unless otherwise specified.

We use the terms Director of Public Prosecutions (‘DPP’) and Office of the Director of Public Prosecutions (‘ODPP’) to distinguish between the individual officeholder and the office.

We also use the terms ‘police officer’ when referring to a ‘sworn’ police officer and ‘member’ or ‘members’ to capture police officers as well as staff who work for police but are not police officers.

1. Introduction

This chapter focuses on criminal justice responses to child sexual abuse in institutional settings and considers whether reform is needed.

Where child sexual abuse occurs and is reported to police, the criminal justice system may apply. Victim-survivor perceptions of how people in that system respond to complaints can influence whether they disclose the abuse. And the assumptions, practices and structures in the system may affect whether victim-survivors who do make reports to police will have their reports taken seriously and investigated. The criminal justice system provides one of the few ways to hold perpetrators to account and is an important means of disrupting future offending by these abusers.

The National Royal Commission released a standalone report on the criminal justice system in August 2017. The report noted that the criminal justice system is often seen as ineffective in responding to sexual violence, including child sexual abuse.1 The National Royal Commission made 85 recommendations for criminal justice reform. Tasmanian criminal justice agencies have implemented many of these recommendations, including to introduce a Witness Intermediary Scheme pilot and new provisions in the Evidence Act 2001 (‘Evidence Act’) to make it easier for children to give evidence. We commend the Tasmanian Government for making these significant reforms.

During our Inquiry’s consultations, sessions with a Commissioner and hearings, we heard from victim-survivors of institutional child sexual abuse about their experiences with the criminal justice system. While some people who spoke to us described sensitive responses, others described practices and behaviour that they felt had exacerbated their trauma. Some of these criticisms came from victim-survivors who had been complainants in child sexual abuse cases prior to recent reforms to the criminal justice system. Other criticisms were made by people with a more recent experience of the criminal justice system, some of whose concerns had not been addressed by the changes.

As part of our Inquiry, we have considered the extent to which legal and procedural reforms made in Tasmania during the past decade or so, including those based on the National Royal Commission’s recommendations, have improved the way the criminal justice system deals with child sexual abuse. As we explain in this chapter, the fact that some people continue to describe the criminal justice system as insensitive and traumatic suggests that more needs to be done.

Of course, some principles that underpin the system may render its processes difficult for victim-survivors, irrespective of reform. These include the right of the accused person to remain silent, procedural requirements designed to ensure a fair trial, and the nature of the adversarial system, which requires the evidence of victim-survivors to be tested. A consistent concern that victim-survivors of child sexual abuse express is that, while the accused person has the right to remain silent, the victim-survivor is often subjected to extensive, vigorous, personal and at times degrading cross-examination. Victim-survivors are often retraumatised by the telling and retelling of their story while preparing for trial and through cross-examination, and by the consequences of an acquittal.2 Acquittal is often claimed to constitute ‘exoneration’ of an accused person, whereas it is, in fact, a finding that the offence has not been proved beyond reasonable doubt.

We sympathise with these critiques of the criminal justice system as they relate to child sexual abuse, but—given our terms of reference—we do not address the broader criminal justice system in this chapter. Instead, we focus on reforms that will help victim-survivors in that system. For some victim-survivors, a redress or civil claim may be preferred or may be more appropriate than relying on the criminal justice system. We discuss redress and civil systems in Chapter 17.

We acknowledge that legal and procedural reforms alone will not necessarily improve the criminal justice experience of victim-survivors of child sexual abuse. As long ago as 1998, a Tasmanian task force on sexual assault and rape observed that:

Law reform is capable of modifying practices and making the process more tolerable for victims. The law can also have an educative effect in terms of attitudinal change in the community. However, it is important to be clear sighted about the impact of changes to legislation without corresponding changes to awareness of the issues within the legal system and in the wider community. Until educational and attitudinal change strategies modify community belief systems, perpetrators will continue to break the law without fear of penalty and victims will continue to lack credibility in the courts and have little confidence in the justice system.3

These observations are particularly relevant for crimes involving child sexual abuse in institutions that the community trusts to care for children. Such behaviour was often ignored until the National Royal Commission made its shocking findings about the prevalence of institutional child sexual abuse and the failures of institutions and governments to prevent or respond to such abuse. Our Inquiry has shown that child sexual abuse in institutions is not solely historical.

In this chapter, we explain police and prosecution responses to child sexual abuse cases and highlight areas where we consider more reform is needed. Our recommendations in this chapter consider the fact that Tasmania is a small jurisdiction with limited resources.

Although our Inquiry focuses on child sexual abuse in institutional settings, our recommendations will naturally have an impact on child sexual abuse that occurs in other contexts.

1. Overview of the criminal justice system

This section summarises the key stages in the Tasmanian criminal justice system as they relate to child sexual abuse offence cases. The chapter includes more detail on each stage when it is discussed in relation to a recommendation.

The criminal justice process starts when an offence is reported to, or detected by, police. Police then decide whether to investigate the offence. If they do investigate, they are then responsible for conducting that investigation. In the case of child sexual abuse offences, the investigation typically involves interviewing the accused person, the complainant and any other witnesses. If police gather enough supporting evidence, they may arrest and charge the accused person.

In child sexual abuse offence cases, police typically receive advice from the ODPP about whether an accused person should be charged with an offence. Pre-charging advice that recommends charges not proceed reflects the prosecutor’s judgment that there is no reasonable prospect of conviction and not their judgment about whether the alleged behaviour occurred.4 The willingness or ability of a complainant to give evidence at trial can often be a key consideration when making this recommendation.

Child sexual abuse offence cases are generally heard in the Supreme Court. The ODPP prosecutes these cases. The ODPP also prosecutes some indecent assault matters in the Magistrates Court where the accused person elects to have the matter dealt with summarily (under section 72 of the Justices Act 1959). During the hearing of an indecent assault charge in the Magistrates Court, the accused person may be committed to the Supreme Court in certain circumstances, including if a magistrate considers that the charge should be dealt with in the Supreme Court.5 The ODPP also prosecutes summary child exploitation material offences under the Classification (Publications, Films and Computer Games) Enforcement Act 1995 (‘Classification (Publications, Films and Computer Games) Enforcement Act’) in the Magistrates Court.

A victim-survivor may be asked to help prosecute the case, which will normally involve giving evidence about what they experienced. The ODPP provides a Witness Assistance Service to support victim-survivors in giving evidence and understanding the court process.

If an accused person pleads not guilty to a child sexual abuse offence, a trial will be held in the Supreme Court before a judge and jury (or in some cases in the Magistrates Court before a magistrate). Tasmania recently introduced legislation to allow for judge-alone criminal trials, which began on 8 June 2022.6 At the trial, the Crown (represented by a prosecutor from the ODPP) represents the State and a defence lawyer generally represents the accused person.

When a case is heard before a judge and jury, the judge will decide what evidence the jury can hear. The judge will direct the jury about the legal principles it must apply in deciding whether the accused person is guilty or not guilty. If the jury finds the accused person guilty, the judge decides the sentence. If the jury finds the accused person not guilty, the accused person is acquitted of the offence(s) with which they were charged. Although the Attorney-General can appeal against an acquittal on a question of law in some circumstances, this occurs rarely.7

When a person pleads guilty or is found guilty, the court has a sentencing hearing. Again, both the Crown and the defence lawyer will make submissions to the trial judge. Facts that are in dispute may result in another hearing.

A victim-survivor may choose to make a victim impact statement, which they can read out at the sentencing hearing or have read out by the prosecutor. At the end of the sentencing hearing, the judge summarises the facts or makes findings of fact, imposes a sentence and outlines the reasons for the sentence. In Tasmania, the maximum sentence that can be imposed for a child sexual abuse offence is 21 years’ imprisonment.8

A person who has been sentenced can appeal to the Court of Criminal Appeal (a division of the Supreme Court) against the conviction, against the sentence imposed or against both the conviction and sentence. The Crown can appeal against a ‘not guilty’ decision on a question of law or fact, or against a verdict (with the Court’s permission) in cases tried by a single judge, or against a sentence in all cases.9

1. Police responses

Police are often the first point of contact with the criminal justice system for victim-survivors. Sometimes police will be the first to receive a disclosure of child sexual abuse. How police respond is often highly influential in determining how a victim-survivor views the criminal justice system and their willingness to seek a criminal justice response.10

Police decisions, including whether and to what extent to investigate a reported crime, are also critical in determining how a matter proceeds. Police failure to prioritise and act on a report of child sexual abuse can have an enormous impact on the quality of evidence they find.

In this section, we outline recent changes Tasmania Police has made to improve the way it deals with child sexual abuse cases. We go on to discuss opportunities for reforms relating to:

• establishing specialist police units
• building trust with particular communities
• improving professional development
• making reporting easier
• conducting effective investigations
• implementing complaints and oversight mechanisms.

Opportunities to improve police coordination and information sharing with other agencies are discussed in Chapter 19 and Chapter 21.

Police can play an important role in disrupting child sexual exploitation and abuse, particularly for vulnerable children such as those in out of home care. We discuss disruptive policing in out of home care in Chapter 9.

1. Recent police reforms and initiatives

Tasmania Police told us that it has significantly changed its policies and procedures for investigating child sexual abuse in the past two years. This section outlines those changes.

The National Royal Commission explored issues on how police can:

• encourage reporting
• conduct effective investigations and interviews
• maintain trust and continuity with victim-survivors
• ensure appropriate charging decisions.11

The National Royal Commission made several recommendations relating to police, including Tasmania Police.

Tasmania Police has accepted most of these recommendations. Of those it has accepted all are completed or in progress, though some are part of ongoing capacity building and workforce development.12 Tasmania Police’s primary response to the recommendations has been to make extensive changes to the section on sex crimes in the Tasmania Police Manual. The manual now offers clearer guidance to police officers on how they should respond to, and investigate, complaints of sexual assault and abuse.13

Tasmania Police informed us that it began an internal review on 30 November 2020 to examine police interactions relating to James Griffin.14 This review found deficiencies, including interagency coordination, information sharing, legislative barriers and investigative shortcomings.15 We discuss this review in the James Griffin case study (refer to Chapter 14). In summary, the review found that:

• Following a report about Mr Griffin in 2011, there was no record that the police investigator searched the police intelligence system, which would have revealed a report about Mr Griffin from 2009.16
• Following a report about Mr Griffin in 2013, there was no record that the police investigator searched the police intelligence system, which would have revealed the previous two reports.17
• There were deficiencies in the management of information received by Tasmania Police from the Australian Federal Police in 2015 relating to Mr Griffin’s sexual offending and possession of child exploitation material.18 This matter has been the subject of a Professional Standards investigation, and the police officers involved have been disciplined.19

On the public release of the findings of its review on 21 February 2021, Tasmania Police committed to setting up a specialist investigative and policy team to focus on improving police procedures for child sexual abuse cases.20

Darren Hine AO APM, former Commissioner, Tasmania Police, told us that the recommendations from the review have led to significant change in the way police respond to child sexual abuse.21 He stated that Tasmania Police has sought to improve information sharing between agencies by creating the Tasmania Police Initial Investigation and Notification of Child Sexual Abuse Guidelines. It has also entered various memorandums of understanding, including the 2021 Keeping Children Safe Memorandum of Understanding between the Children Safety Service (in the former Department of Communities) and Tasmania Police (in the Department of Police, Fire and Emergency Management), to ensure prompt and efficient information sharing.22

The Initial Investigation and Notification of Child Sexual Abuse Guidelines, which came into force on 23 July 2021, guides the response of police officers when they receive a report of child sexual abuse. The guidelines include information about how to manage forensic evidence, notifications and referrals. They also outline the minimum requirements of police officers prior to them filing a report of child sexual abuse, which are to:

• contact the reporting person
• make every effort to establish the victim’s identity (if unknown) and to assess and investigate the report
• conduct a thorough examination of Tasmania Police databases
• request cross-agency and interstate checks to see whether intelligence held outside Tasmania may assist the investigation
• provide contact details of the investigating police officer to the victim-survivor
  and/or parent, guardian or, where appropriate, other support person
• have a supervisor confirm that the above actions have been taken.23

On 26 February 2021, the Tasmanian Government launched its Historic Complaints Review Process within Tasmania Police.24 This review concluded in January 2022. The Child Sexual Abuse Joint Review Team, a multi-agency team, sought to identify potential perpetrators of child sexual abuse where there may be unlinked reports or references across agencies relating to a person.25

The Tasmanian Government is also setting up two multidisciplinary centres to co-locate family and sexual violence support services and specialist police investigators.26 Pilot programs are to start in Launceston and Hobart.27 Media reports suggested the pilot programs would start in mid-2023.28 We discuss multidisciplinary (‘Arch’) centres in Chapter 21. In this chapter—Chapter 16—we focus on the relationship between multidisciplinary centres and police specialisation, which we discuss in Section 3.2.2.

1. Opportunities for other police reforms

1. What we heard about police

The criminal justice system only works if victim-survivors feel comfortable coming forward and making a complaint to police. It is vital that police are seen as a trusted avenue to seek help. They must communicate to victim-survivors with respect and ensure victim-survivors feel supported.

In submissions, consultations, sessions with a Commissioner and hearings, victim-survivors reported varied experiences with police. The experience of a victim-survivor not only affects them (and possibly others affected by the matter they are reporting) but might also influence the decision of others (such as family or friends) to report crimes.

Some victim-survivors described positive experiences with police. One victim-survivor of child sexual abuse told us that the police officer investigating her case had gone ‘above and beyond’ to make sure the investigation was thorough and timely and that she felt supported.29 Leah Sallese, a victim-survivor, told us that the police officer investigating her case was ‘amazing’ and ‘treated me with respect, care and kindness’.30 She said:

I don’t know if everyone has the same experience with Tasmania Police, but I feel lucky to have had the right detectives there to bat for me. My positive experience with the police was a key reason I ended up pursuing criminal justice.31

Tiffany Skeggs, a victim-survivor, described the investigating police officer in her case as ‘professional and at the same time genuinely caring’.32 Alex (a pseudonym), another victim-survivor, also told us that the detective on his case had been very supportive.33

In contrast, some victim-survivors told us about negative experiences. Mark Southern, a victim-survivor, told us that when he reported sexual abuse to police in 2003, they took his statement and then he ‘didn’t hear back from them in 10 years’.34 Mr Southern said police left him ‘in the dark’ and did not offer him any support while he was waiting for a response.35

Faye (a pseudonym) said that when, in about 2006, she spoke to police about the first time she was sexually abused, the person taking the statement said, ‘Oh, is that all it was?’36 She said that this has really stuck with her; she felt judged.37

Victim-survivors told us about negative experiences with police when reporting child sexual abuse by James Griffin (refer to Chapter 14 for a detailed discussion of Mr Griffin).38 Keelie McMahon, a victim-survivor, told us that, while her initial contact with Tasmania Police was ‘really good’, after Mr Griffin’s death ‘everything just shut down’ and she was told ‘that’s it, he’s dead, there’s nothing more we can do’.39 Angelique Knight, another victim-survivor of Mr Griffin, was also told that there was nothing police could do.40 She said:

This made me really angry. I think this hurt the most because I had really built myself up to go in there. It was a big thing for me. I was really struggling to find what direction to go in and this made me feel like my experience wasn’t important.41

Laurel House reported that victim-survivors it had contact with had mixed experiences with police, noting that some police demonstrated ‘exemplary trauma-informed practice’ while, in other cases, contact with police ‘further traumatises victim-survivors or silences them’.42

In stakeholder consultations, we also heard a range of views on the efficacy of police responses to child sexual abuse, with some participants reporting police to be responsive and professional.43 Some stakeholders noted that attitudes towards child sexual abuse are changing—it is now easier to report and police are more responsive.44 Some participants reported complexity involved in deciding whether to pursue criminal charges, also noting that police decisions not to proceed with a matter are sometimes made to respect the wishes of victim-survivors and their families, and to avoid retraumatising a victim through the process.45 Some stakeholders at our Burnie consultation spoke highly of police in North West Tasmania, with one participant describing police as trauma-informed and willing to ‘go the extra mile to help victims’.46

In contrast, other consultation participants said police have a poor understanding of child sexual abuse and a tendency to believe adults over children.47 Some participants raised concerns about the timeliness of investigations, particularly where there may be ongoing risks to children.48

As noted, Tasmania Police has introduced reforms to improve the experience of victim-survivors, including extensive changes to the Tasmania Police Manual. The following sections consider specific opportunities to improve the way police communicate with, and respond to, victim-survivors.

1. Establishing specialist police units

Investigating allegations of child sexual abuse is a highly complex task requiring specialised knowledge and skills. These investigations are sometimes limited by a scarcity of evidence, often due to the absence of independent witnesses and physical evidence. Therefore, police need a high level of skill in using all opportunities to gather evidence effectively, including the skills to elicit detailed, reliable and relevant accounts from complainants, particularly children.49

We heard evidence from Dr Patrick Tidmarsh, a consultant at Whole Story Consulting, who previously worked with Victoria Police as a forensic interview adviser and trainer in the Sexual Offence and Child Abuse Investigation Team.50 According to Dr Tidmarsh, investigating child sexual abuse offences calls for a specific skill set that most police do not have, regardless of their level of experience.51 We also heard from Victoria Police that some police officers have attributes that position them better for this work.52 Dr Tidmarsh told us that specialisation in this area is important to maximise the number of complaints that progress to prosecution and conviction, and to minimise the compounding nature of the trauma adult and child victim-survivors experience as they move through the investigation.53 Also, police specialisation has the potential to ensure those who investigate child sexual abuse cases take a trauma-informed approach to victim-survivors.

Tasmania Police does not have specialised child sexual abuse investigation teams. Responsibility for responding to a notification or an allegation of suspected child sexual abuse generally lies with the police geographical district where the offending is alleged to have occurred. Tasmania Police consists of nine commands: three geographical police districts (Southern, Northern and Western) and six specialist support commands.54

Tasmania Police has a High-Risk Child Exploitation Unit operating in its Crime and Intelligence Command. This unit assesses and acts upon referrals from the Joint Anti Child Exploitation Team or other information Tasmania Police receives, including from the Australian Centre to Counter Child Exploitation.55

Commissioner Hine informed us that initial responses to an allegation of child sexual abuse may involve general duties patrols, the Criminal Investigation Branch, Family Violence Units and Forensic Services.56

In its submission, Tasmania Police stated that relevant specialist teams are based under different commands, leading to inconsistent operating practices and reduced connectivity.57 It advised us that, despite efforts to work together, differing priorities mean these organisational units can work in operational silos, which does not always support trauma-informed approaches to prevention, detection, investigation and collaboration, nor ensure police officers have the skills to appropriately support victim-survivors.58 In June 2022, Commissioner Hine told us that, although all police officers conduct investigations, the Criminal Investigation Branch leads most investigations, including those into sexual abuse.59

Commissioner Hine said that Tasmania Police will refer victim-survivors of child sexual abuse to the relevant sexual assault support agency and (where the victim-survivor is a child) to the Child Safety Service.60 Tasmania Police’s Initial Investigation and Notification of Child Sexual Abuse Guidelines specify that a single investigator should conduct the whole investigation in child sexual abuse matters wherever possible.61

The generalist approach in Tasmania differs from practices in most other jurisdictions of Australia and New Zealand. Elsewhere, child sexual abuse investigations are undertaken by decentralised, specialist child abuse investigation units or by local policing child abuse investigation units with centralised specialist support.62 In some jurisdictions, such as New South Wales (discussed below), Queensland and Western Australia, specialist units focus on child abuse. Other jurisdictions, such as Victoria (also discussed below), have units or groups within sex crime divisions that include adult sexual offences.63

We heard some concerns that the size and geography of Tasmania can be a practical barrier to having specialist units. Commissioner Hine told us that the challenge is to provide coverage across Tasmania, particularly in sparsely populated areas. He noted that some areas, such as Queenstown, Burnie and Devonport, are too small to have a dedicated resource.64

Police specialisation would need to consider these challenges. Tasmania Police emphasised that any reforms must ensure it can continue to provide a local response to meet community needs.65 Tasmania Police further noted that this does not mean there has to be an identical presence in every population centre, but it does require consistency of response in regional areas with a surge capacity to respond effectively and equitably across Tasmania.66

We consider there is scope to draw on the key features and experience of specialist police models in other Australian jurisdictions and to adapt these to Tasmania, recognising unique considerations based on the size, scale and demographics of the State.

We heard evidence about the specialist police units in New South Wales and Victoria, where police officers receive extra training and become expert child sexual abuse investigators. Victoria Police’s Sexual Offences and Child Abuse Investigation Teams (referred to as ‘SOCITs’) provide specialist response and investigation for sexual assault and child abuse matters. In Victoria, 450 investigators are spread across 28 sites.67 These investigators receive specialised training and are dedicated to investigating sexual assault and child abuse.

Some specialist police work in multidisciplinary centres across Victoria, which co-locate specialist police with child protection expertise, as well as counsellors and advocates from the Centres Against Sexual Assault.68 In areas that do not have a multidisciplinary centre, other specialist police operate with the same interagency protocols to achieve the same collaborative approach, but each agency works from separate offices. In these areas, police must contact their local Centres Against Sexual Assault office within two hours of a report, to facilitate support.69

In Victoria, police receive reports of child sexual abuse through channels including referrals from Centres Against Sexual Assault and schools. The specialist police team receives most reports of child sexual abuse from the Department of Families, Fairness and Housing under its Protecting Children protocol.70 Victoria Police also has a specialist task force (the SANO Taskforce) to investigate historical and new allegations of child sexual abuse in a religious or institutional setting. Police officers in this task force are specially trained to investigate sexual offences.

In New South Wales, a specialist referral team, the Joint Child Protection Response Program, handles most serious child abuse offences. The specialist team is a statewide centre-based response that includes specialist police (‘Child Abuse Units’) and child protection and health agencies. Cases for the specialist team come through a shared central reporting system. Cases are then assessed and triaged.71 This differs from the approach in Victoria, where reports of child sexual abuse come through various channels rather than a central unit.

The Child Abuse Units, which work as part of the specialist referral team, are not attached to a region and operate under the Child Abuse and Sexual Crime Squad command. Peter Yeomans, Detective Chief Inspector, New South Wales Police Force, told us that a benefit of this approach is that Child Abuse Units are not ‘swallowed up’ if a particular region has a homicide or a large-scale investigation that uses up police resources.72

Detective Chief Inspector Yeomans told us there were 19 Child Abuse Units operating throughout New South Wales, most of which are located near the Department of Communities and Justice and New South Wales Health but are not co-located with them.73 If necessary, police officers from the units travel to remote parts of the State.74 With 19 units throughout the State, the maximum travel time is three hours.75 Police mostly travel to the victim.76

A review conducted for the National Royal Commission on the efficacy of specialist police investigative units in responding to child sexual abuse identified some challenges, including access to resources, the availability of specialised training for investigators and effective interagency collaboration.77 Having considered this review, as well as the experience in other Australian jurisdictions, we consider the key features that underpin successful specialist child sexual abuse investigative units are:

• specialised training, including training on interviewing child and vulnerable witnesses
• proactive strategies from police to encourage reporting and to build trust and credibility with the community
• partnerships with other agencies and support services commonly involved in the response (closely located but not necessarily co-located)
• a dedicated focus on child sexual abuse investigations (and possibly adult sexual offence investigations)
• that they support the emotional health and wellbeing of police officers
• that they are located in, or have access to, appropriately furnished and equipped facilities for interviewing victim-survivors, separate from accused persons
• that they have sites across the State to provide equitable access to victim-survivors regardless of where they live.

Specialised training, including training on interviewing child and vulnerable witnesses

We heard evidence that the most important aspect of skill specialisation for police in sexual offending cases is interviewing.78 In child sexual abuse offence cases, the evidence of the victim-survivor is often the only evidence of offending. The police interview is therefore extremely important and will dictate if the investigation should proceed to the stage of interviewing the alleged offender.79

Dr Tidmarsh told us that most inconsistencies in interviews are created by interviewers and not the complainant. He stated that continuity of engagement and specialisation in interviewing are therefore key to the investigative process.80

The Victoria Police Specialist Development Unit developed the concept of the Whole Story framework for investigating sex offending and the sexual abuse of children. It is based on the concept that although the prosecution must prove that certain events happened in time and place, sex offending and the sexual abuse of children usually arises out of a pre-existing relationship. The relationship would have occurred before and during those events and often helps to contextualise the offending.81 Dr Tidmarsh stated that when victim-survivors can use a narrative style, the breadth and depth of the information elicited increases dramatically.82

Daryl Coates SC, DPP, told us that there is great benefit in having specialist police conducting interviews for complainants and vulnerable witnesses, and in maintaining contact with these witnesses.83 He noted that, in general, interviewing police officers have become more aware of the need to have complainants identify with as much detail as possible the instances of sexual abuse. There has also been an increase in the use of open-ended questioning and encouraging a ‘narrative’ from the witness.84

Witness intermediaries can assist police in improving the quality of their interviews by offering strategies to elicit the best evidence from the person (particularly children). Refer to Section 5.2.1 for more on Tasmania’s Witness Intermediary Scheme pilot.

Partnerships with other agencies and support services, without the need
for co-location

Strong partnerships with other agencies and support services are important for an effective specialist investigation unit. But co-location in a purpose-built facility is not necessary to create effective partnerships.85

Detective Chief Inspector Yeomans communicated the view of the New South Wales Police Force that it is now best to have the agencies near each other, rather than co-located. He noted that in New South Wales, effective and regular communication between agencies is critical to the success of the specialist referral team, whether a service is co-located or not.86 He emphasised that working close to health centres and community services is most important.87 He gave an example of how police work out of an old house in the township of Inverell, with a community service centre and a health centre across the road.88

Unfortunately, it is possible for services to be co-located and still operate in a highly siloed way. Conversely, others can be located separately and still work together effectively. What is important is a shared commitment to collaborate and for legislation and related processes to enable that collaboration (for example, through effective information sharing).

It is also important to have clear mechanisms within the response that build and sustain strong working relationships and collaborative practices to foster a multidisciplinary team approach, such as joint case strategy meetings and shared professional development.89 Where multidisciplinary teams are responding to many cases in an area, there may be efficiency in co-location for undertaking the work and opportunities for incidental contact that strengthen relationships. Crisis and therapeutic supports for victim-survivors may also be more readily accessible. However, where teams are co-located, it is important that the facilities meet the different needs of each profession within the building; for example, police may need an evidence room and space for confidential case discussion.

Although we do not consider co-location is necessary, we do consider it is important to conduct interviews in a space where children feel comfortable. These spaces are better located outside police stations, such as in other services’ facilities. Research indicates that conducting interviews in a space where a child is comfortable increases the likelihood of detailed disclosure, which is conducive to prosecution and conviction and reduces the likelihood that the child will be retraumatised.90

Tiffany Skeggs, a victim-survivor, told us that when police interviewed her, she was ‘utterly terrified someone might see her walk into the police station’.91 Ms Skeggs noted that being interviewed in a police station could deter some people from coming forward, a view other victim-survivors also expressed.92

We also note that for many people who may have a criminal background or who come from a community that does not trust police, attending a police station may feel unsafe or be a barrier to reporting.

The Victoria Police Code of Practice for the Investigation of Sexual Crime requires special investigators to respond to reports of recent sexual abuse in plain clothes and an unmarked vehicle.93

Detective Chief Inspector Yeomans also informed us that the specialist Child Abuse Units in New South Wales are not housed in police stations with uniformed police officers. He stated that children feel more comfortable engaging with police officers as a result, which appears to have contributed to more disclosures over time.94

Tasmania Police expressed support for new and improved ‘soft’ interview rooms (this is a term police use to describe rooms that are designed to feel safe and welcoming for adult and child complainants and witnesses). Glenn Hindle, Detective Senior Constable, Tasmania Police, told us that some soft interview rooms are in use but that the location of those interview rooms in police stations is contentious.95 He told us of a soft interview room at Launceston police station where:

… quite often we’re having to separate the mother off from the child and that separation quite often occurs at the front counter of the police station and the child is then marched through the police station as an individual on their own as well, so the journey is not pleasant for everybody.96

We note that children may not disclose as much specific detail about their abuse when a parent is in the room because it might distress their parent. Ideally, there should be a private, family-friendly waiting room located adjacent to soft interview rooms, where families (including any siblings waiting to be interviewed) can wait with the support of a counsellor or advocate while a child is being interviewed.

Katrina Munting, a victim-survivor, described her experience of making a report to police: ‘I found the police station quite frightening. I went to a small room that I think was usually used to interview suspects. It was small and bleak and not very comforting’.97

Detective Senior Constable Hindle said that a better environment to take a statement from a complainant might involve them entering a facility that is not so authoritative.98 He noted that ‘often it is a complainant’s first dealing with police, and they walk into a building feeling like they’ve done something wrong’.99

At a consultation in Hobart, some police noted that new systems for recording evidence were being rolled out, and they spoke about intentions to improve soft interview rooms. Many expressed a preference for interviews to be conducted offsite to make victims more comfortable.100

Moreover, in a submission to us, Tasmania Police stated that soft interview rooms should be ‘specifically designed, separate from police stations, fitted out and located across the State to ensure all victims have the most conducive environment to tell their story’.101 We support such an approach.

A dedicated focus on child sexual abuse investigations

We consider there is a strong basis for having specialist investigation units focused on child sexual abuse cases, and possibly adult sexual offences, rather than being absorbed into another unit such as a family violence unit. Family and sexual violence often occur together (almost 40 per cent of sexual offences involve family violence).102 But while there are some overlaps and similarities in family violence and sexual offending, there are also differences, particularly in the context of institutional child sexual abuse.

Where child sexual abuse investigations are absorbed into other units, especially those that are busy with a high number of reports like family violence, there is a risk that the child sexual abuse work (particularly where it may be historical) will be overwhelmed by the immediate pressures of managing high-risk family violence offenders. Victoria Police told us that, under its model, the two units work closely together and that it is important for police officers working in these areas to do so.103 Specialist family violence teams also undergo specialised sexual offence and child abuse investigation training in Victoria.104

There may be scope for rotating police officers through specialised units to broaden skill sets and to help build specialisation over time. However, we consider that there should be a dedicated team of specialised police officers for child sexual abuse, which could include adult sexual assault.

Our consultations with police in Hobart and Launceston highlighted that, under current arrangements, resourcing challenges and competing pressures could slow the pace of work and reduce the ability of police to focus on sexual crimes, noting that these crimes are resource-intensive and complex.105

Detective Senior Constable Hindle told us that police investigating child sexual abuse face limitations, including conflicting priorities such as shift work and investigations unrelated to sexual offending.106 He stated that in his position as an investigator focusing on interpersonal crimes, he is sometimes drawn away from that area to spend time dealing with a wounding or an armed robbery, for example.107 Dr Tidmarsh also observed that, given its small size, Tasmania Police is set up for service delivery through single stations in different locations; it is normal for police officers to multi-task.108 Resourcing and rostering demands can take specialist police officers away from their specialist work.

Dr Tidmarsh also gave evidence about the risks of absorbing sexual abuse investigations into another area such as family violence. According to Dr Tidmarsh, because family violence requires a crisis response in a way that sexual offending does not, and sexual offending is harder to prosecute and is fraught with more community myths and misconceptions than family violence, family violence can become the dominant area of work. Child sexual abuse investigations can therefore become engulfed in those processes and the sheer volume of family violence matters.109 We are convinced by these concerns and have serious reservations about Tasmania’s intention to incorporate family and sexual violence responses with child sexual abuse responses.110

We consider that establishing specialist child sexual abuse units in Tasmania will provide the best possible service for child and adult victim-survivors. As Detective Chief Inspector Yeomans told us:

You’ve got to have a specialist squad that deals with this type of crime. You’ve got to have specially trained officers that deal with this type of crime, otherwise the risk is too high … to that child and to the community if we do our job poorly, because in the end … it’s about the interview, it’s about the investigation, because if we don’t do that job, you’re not talking about thieves here or robbers or whatever else, you’re talking about the most vulnerable in our society, so you’ve got to have dedicated staff to do that …111

Establishing multidisciplinary centres provides one approach to foster greater specialisation and improved services to victim-survivors. We welcome Tasmania’s commitment to setting up multidisciplinary centres but consider it should prioritise police specialisation to ensure virtual or physical multidisciplinary responses include specialists. We consider that the best approach for Tasmania is to set up specialist investigation units for child sexual abuse for child and adult victim-survivors (and possibly sexual offences against adults), but not include domestic and family violence. These specialist units should work closely with other agencies involved in the response. They may be, but do not have to be, co-located with them.

With cases of recent sexual abuse, best practice is to collect evidence and take statements as soon as possible. When specialist units are centrally located, this can require that children be transported for multiple hours to the specialist team—sometimes

without having bathed and still in the clothes in which they were sexually abused. Minimising the need for victim-survivors to travel long distances and enabling police to respond quickly are important features of a victim-centred response.

To provide a statewide response, specialist investigation units could be located in Hobart, Launceston and the North West. Staff who perform reception duties at these locations should be trained to treat victim-survivors in a trauma-informed way. Tasmania Police could draw on the experience in New South Wales to provide coverage and coordinated support to victim-survivors in remote areas. As previously noted, New South Wales police officers from the specialist units will, if needed, travel to the victim-survivor, who is usually located within a three-hour drive.112

The success of specialist units also depends on having enough staff. Tasmania is a small state with a limited number of senior detectives. Victoria Police told us that the specialist model requires shifting from more traditional generalist police structures that allow resources to be diverted when required.113

Commissioner Hine said there is no guarantee that specialist investigators in Tasmania’s new multidisciplinary centres will not have to perform other duties.114 This could include being routinely rostered to the Criminal Investigation Branch ‘Crime Car’.115 However, Commissioner Hine noted that Tasmania Police would always do its best to support police officers investigating child sexual abuse to perform their main role.116

There needs to be protection of this specialist resource so competing priorities do not overwhelm investigators. They should only be drawn into other policing areas when there are exceptional circumstances, such as natural disasters or public health emergencies.

Tasmania Police should attract people to work in this area by recognising the breadth of skills required, acknowledging the investigative complexity of these matters and properly rewarding this difficult work. Tasmania Police may learn from other jurisdictions, such as Victoria Police, to create incentives that attract well-suited police officers to join such units. In the case of Victoria Police, this includes supporting detective training and ensuring appropriate support for vicarious trauma.117

Support for emotional health and wellbeing of police

Police who specialise in child sexual abuse investigations can experience stress, trauma and burnout. The National Royal Commission review into the use and effectiveness of specialist police investigative units reported that staff in all types of specialist units raised concerns about their emotional health.118 Staff in specialist police units commented on the high emotional toll of working solely on sexual abuse cases, noting that this might lead to burnout and secondary trauma.119

We heard evidence about the ‘world-leading health and wellbeing strategy’ for investigators developed by the Australian Centre to Counter Child Exploitation and Human Exploitation Operations.120 Hilda Sirec, Commander, Australian Federal Police, who leads the Centre, told us that it is an ‘opt in’ environment, meaning that police officers must agree to transfer.121 She also indicated that investigators have access to in-house psychological and wellbeing support, and that the physical work environment has been designed with health and wellbeing in mind.122

Detective Chief Inspector Yeomans highlighted the need to offer psychological support to police who specialise in this field.123 In New South Wales, specialist police officers must take part in mandatory quarterly psychological tests. These are conducted by trained psychologists in the Psychology Unit of the New South Wales Police Force. The specialist investigators are also rotated into other areas of the New South Wales Police Force every three years. This rotation is usually for three months. Detective Chief Inspector Yeomans told us that the rotation policy is strictly adhered to for the development and welfare of police officers.124 Victoria Police does not mandate rotations outside the specialist unit but is vigilant about vicarious trauma and other psychological impacts of the work, noting that some police officers will decide they need a change or move to a different area.125

Similarly, Dr Tidmarsh said that Victoria Police has a specialist Investigator Support Unit with therapeutic professionals who work onsite in the Sexual Offences and Child Abuse Investigation Teams. These professionals run group reflective practice sessions and work with individuals to look after the health and wellbeing of police officers in this field.126

Recommendation 16.1

1. The Tasmanian Government should fund and establish specialist units in Tasmania Police, based on the Victorian Sexual Offences and Child Abuse Investigation Teams model, to investigate child sexual abuse and to be based in three locations (Hobart, Launceston and the North West).
2. The specialist police units should:
   1. specialise in the investigation of child sexual abuse, including historical child sexual abuse (and potentially adult sexual assault) but not undertake domestic and family violence work unless it is directly connected to child sexual abuse (or adult sexual assault)
   2. be staffed by police officers who have undertaken specialised professional development (Recommendation 16.3) and members who have trauma-informed training (Recommendation 19.2)
   3. partner with other agencies and support services involved in responding to child sexual abuse to create multidisciplinary teams. These teams do not have to be co-located, although this may be appropriate in some areas
   4. have access to a ‘soft’ interview room, ideally offsite from police stations and potentially in multidisciplinary centres
   5. be directed to perform other policing duties only in exceptional circumstances and not as part of a unit’s usual roster
   6. support the wellbeing of police officers and members working in the specialist unit
   7. develop and implement strategies to engage and build trust with marginalised communities, particularly Aboriginal people and people with criminal histories (Recommendation 16.2).
3. Tasmania Police should measure and report on victim-survivor satisfaction with the operation of the specialist units within two years of establishment and regularly thereafter.

1. Making reporting easier

The processes for reporting child sexual abuse to police should be made easier, especially for vulnerable groups.

Online reporting

Not all victim-survivors of child sexual abuse will necessarily know how to make a report to police. In some cases, they may not even recognise what they have experienced as sexual abuse. Victim-survivors may also feel uncomfortable seeking information and support in person. We consider that victim-survivors should have easy access to information on ways to access support services, how to contact police, the process involved in making a complaint and what to expect at each stage of the criminal justice process.

The National Royal Commission recommended a national website and helpline as a ‘gateway to accessible advice and information’ and to connect people with support services.127 It envisaged the website as ‘a visible, central point of contact’ for victim-survivors.128 The Australian Government’s National Redress Scheme website and its website on implementing the National Royal Commission’s recommendations respond to this recommendation.129

The Victorian Law Reform Commission recommended that the Victorian Government set up a central website (or expand an existing website) with practical information on sexual violence and options for support, reporting and justice.130 Like the Victorian Law Reform Commission, we consider that such a website could help young people and adult victim-survivors of child sexual abuse understand what is involved in making a report to police and help them access support. The Victorian Law Reform Commission considered that the website should provide information and access to support in a range of languages and formats and be tailored to diverse needs.131

The website recommended by the Victorian Law Reform Commission would apply to all forms of sexual violence and sexual abuse. Our Commission of Inquiry focuses on child sexual abuse, but such a website may be useful for victim-survivors of all sexual abuse.

Tasmania Police is examining opportunities to develop its digital capacity to allow online reporting of sexual abuse.132 The purpose of this initiative is to encourage reporting of allegations of child sexual abuse, with an emphasis on vulnerable victims (including Aboriginal people and people in prison).133

Commissioner Hine told us that online reporting provides an opportunity for victims to tell their story (anonymously if they wish), have it recorded and receive information about support services. Commissioner Hine noted that, although computer literacy is not as high as it should be in Tasmania, online reporting would provide an alternative for young people to communicate with Tasmania Police.134

Commissioner Hine told us that Project Unify, an initiative to upgrade Tasmania Police’s technology, has been allocated $46 million and aims to include online reporting. According to Commissioner Hine, this would offer an enhanced service for victim-survivors who want to remain anonymous. Funding for this project flows through to 2025–26.135 We welcome this initiative and consider that Tasmania Police would benefit from reviewing online reporting platforms in other Australian jurisdictions.

Building trust with particular communities

Recommendation 16.1 above refers to the need to establish trust with marginalised communities. This section discusses barriers to reporting child sexual abuse that some community groups experience. It recommends that the specialist police units investigating child sexual abuse take steps to address these barriers.

People who have experienced discrimination from authorities or who have been in trouble with the law may be reluctant to report allegations of child sexual abuse to police.

Past inquiries have highlighted systemic racism as a barrier to disclosure for many Aboriginal people who have experienced child sexual abuse.136 Aboriginal consultation participants told us of a reluctance among Aboriginal people to report allegations of child sexual abuse to police or other institutions because of a lack of trust in those institutions.137

The National Royal Commission made recommendations to encourage reporting of allegations of child sexual abuse from Aboriginal victim-survivors, as well as from people in prison and former prisoners.138 In this section, we discuss these recommendations and consider whether more can be done to encourage reporting of child sexual abuse among particular communities.

To encourage reporting from Aboriginal victim-survivors, the National Royal Commission recommended that policing agencies take the lead in developing good relations with Aboriginal communities and provide channels for reporting outside of the community (such as phone and online reporting forms).139 We understand that Tasmania Police views developing good relationships with communities as part of its ‘business as usual’ and is considering offering other reporting channels.140

Commissioner Hine gave evidence about the measures that Tasmania Police is taking to engage and build trust with Aboriginal communities, including the Tasmania Police Aboriginal Strategic Plan 2014–2022.141 This plan includes strategies to develop and maintain appropriate and culturally respectful relationships and to deliver equitable and accessible policing services.142 The plan covers, among other matters, liaison and engagement with Aboriginal communities, recruitment, training and education.143

Commissioner Hine also noted that the State Aboriginal Liaison Coordinator functions include contributing to local strategies to reduce the number of Aboriginal people entering the criminal justice system as victims or offenders.144 We encourage Tasmania Police to continue efforts to build trust with Aboriginal people. More should be done to ensure Aboriginal people who have experienced sexual abuse, including child sexual abuse, can access information and support.

To encourage people in prison and people who have formerly been in prison to report child sexual abuse, including institutional child sexual abuse, the National Royal Commission recommended that policing agencies provide channels for reporting that can be used from prison and that allow reports to be made confidentially, and that former prisoners not be required to report at a police station.145 The Tasmanian Government has not yet implemented this recommendation. In its Fifth Annual Progress Report and Action Plan 2023 the Government said that:

Consultation with the Department of Justice has commenced to identify a short-term solution to allow confidential reporting. A long-term solution to this recommendation will require procedural and technical development … The implementation date is predicted to be December 2024.146

In practice, victim reports from people in Risdon Prison are made to police officers from Bellerive Police Station (the nearest police station) or Bellerive Criminal Investigation Branch and facilitated by custodial officers at Risdon Prison (generally in a prepared Department of Justice report) and, as such, are not confidential.147 Commissioner Hine

told us that reforms to this internal Department of Justice process could increase confidentiality, but he appeared to consider this the responsibility of the Department of Justice.148 Police investigations and enquiries after Department of Justice reporting are confidential.149

Commissioner Hine explained that people formerly in prison can report matters to police via the Police Assistance Line.150 This means they do not have to attend a police station to make an initial report. It would be the responsibility of police to visit the reporter at their home or another location to take a report. Direct phone contact with local police is also available to avoid the need to visit a station.151

We consider that the lack of confidentiality for a report to the Department of Justice is likely to deter reporting. We agree with Commissioner Hine that the process could be improved by increasing confidentiality at this point. We also consider that Tasmania Police should develop strategies to build trust with people in prison (and formerly in prison), which we accept is a significant but not insurmountable challenge. This is particularly important in Tasmania, given the high proportion of abuse claims that arise from (or are connected to) young people in detention at Ashley Youth Detention Centre, many of whom enter the adult prison system (refer to discussion in Chapter 10).

Many young people who were detained or had previously been detained in Ashley Youth Detention Centre told us about their experience of child sexual abuse at the Centre. Few of those we spoke to had reported their abuse. Many spoke of the shame and guilt they felt, the fear of not being believed and a lack of trust in police. One victim-survivor told us:

What happened to me at Ashley has given me a massive distrust when it comes to the system. This includes the justice system and the police. The ones that are supposed to help are the ones you’re trying to escape from.152

In its submission, the Tasmanian Aboriginal Legal Service expressed significant concerns for Aboriginal children and young people in contact with the justice system:

Allegations of historic and current sexual abuse and a lack of trust in authority and institutions and cultural issues re ‘dobbing in’ remain issues for our Aboriginal clients. A clear and transparent complaints process, coupled with culturally sensitive, trauma-informed awareness and education campaign, would assist our clients to report sexual and other misconduct, particularly where there is a perceived and/or legitimate imbalance of power.153

More needs to be done to build trust in police for particularly vulnerable children and adults.

Police also need to address negative attitudes towards some groups of vulnerable young people. A submission from a youth worker cited prejudicial attitudes held by police in the 1990s against young people in out of home care. She said:

I was told nothing they could do ... no-one would believe the stories of ‘those types of boys’. At this time police were not interested in actioning any disclosures from our clientele due to, in their words, ‘these kids are troublemakers and crims and can’t be trusted’. 154

In Chapter 9, we discuss the need for increased police involvement in disrupting child sexual exploitation, particularly in relation to children in out of home care.

One serving Tasmania Police officer described the young people at Ashley Youth Detention Centre as ‘the worst of the worst’ and noted ‘they are not very nice people, these kids’. Another police officer, also speaking about the young people at Ashley Youth Detention Centre, stated that it was ‘too easy for kids to make allegations about these staff’ and ‘their reward for holding the line against these kids is to be the subject of allegations’.155

A former Acting Executive Director, People and Culture, at the former Department of Communities provided evidence of the attitude of one police officer towards young people at Ashley Youth Detention Centre. We were told about a police officer ‘laughing’ at a young person’s claims against a member of staff at Ashley Youth Detention Centre. The police officer showed disbelief when told that the member of staff would be suspended because the young person was ‘from a well-known criminal family, had a long criminal past’ and ‘should not be trusted, especially when there was money involved’.156

Jonathan Higgins APM, then Assistant Commissioner of Operations, Tasmania Police, conceded that Tasmania Police needs ‘to work on [its] unconscious bias’ against detainees or young people with a criminal history wanting to disclose child sexual abuse to police.157

It is clear that the following community groups are likely to experience barriers to reporting child sexual abuse to police:

• Aboriginal communities
• people who are or were in prison or youth detention
• people who are or were in out of home care (or youth support services).

We consider that the specialist police units (refer to Recommendation 16.1) should work with these groups to implement measures that build trust and encourage reporting.

Recommendation 16.2

1. Tasmania Police should establish ways for people to report child sexual abuse online.
2. The Department of Justice and the Department for Education, Children and Young People should review their internal processes to make it easier for people in prison and youth detention to report abuse to the police or other bodies, including online or by phone hotline, and ensure appropriate confidentiality of reports.
3. Specialist police units (Recommendation 16.1) should develop a strategy to engage with ‘priority communities’, by implementing measures to develop relationships, build trust and encourage reporting of child sexual abuse, and to assist prevention and ‘disruptive’ policing (Recommendations 9.29 and 9.30).
4. Priority communities include:
   1. Aboriginal communities
   2. people who are or were in prison or youth detention
   3. people who are or were in out of home care (or youth support services).

1. Improving professional development

Police officers who investigate child sexual abuse need specific professional development in the dynamics of child sexual abuse offending, as well as training in trauma-informed care and specialised techniques for interviewing children and vulnerable witnesses. They would also benefit from training to help create a safer environment and reporting experience for groups who are more likely to be sexually victimised.

Tasmania Police gave evidence to our Inquiry about the training it provides to police officers.158 Different levels of training are provided to recruits, frontline police officers, investigators and detectives.159

Commissioner Hine stated that the training starts as part of the Recruit Training Program and is built on as a police officer moves into investigative phases.160 He also noted opportunities to ‘optimise investigative training’, including developing a sexual assault investigating program specialising in trauma-informed practices and interviewing vulnerable witnesses.161 Learning and Development Services is developing a curriculum for a specialised Sexual Assault Investigation Program that is due to start in 2023. The target audience is experienced detectives looking to further develop their investigative skills, specifically in sex crimes and family violence. It is intended that all detectives should refresh their training to ensure best practice when engaging with victims of sexual violence.162

Commissioner Hine also informed us that:

• Ninety-four per cent of all police officers have completed training in the Initial Investigation and Notification of Child Sexual Abuse Guidelines. This mandatory online training program is aimed at preventing and disrupting child sexual abuse and prioritising children’s safety.163
• Tasmania Police is training police officers on the Whole Story framework, discussed in Section 3.2, as part of its Investigative Practice Program.164
• In 2017, Tasmania Police introduced a training package for interviewing vulnerable witnesses that includes a Whole Story component.165 We understand this training is for detectives.

Commissioner Hine told us that Tasmania Police recognises its need for more education on grooming and boundary breaches.166 We agree.

Dr Tidmarsh told us that the concept of grooming is one of the most important factors for investigators in this field to understand because it reveals the tactics of the abuser and their dynamics with the victim-survivor.167 Dr Tidmarsh said that, in the training he conducted, inexperienced investigators in this field would (wrongly) start with the act that took place—the act that they were going to charge the abuser with—and they often thought that the relationship context from before that point was not relevant.168

We also consider that an understanding of grooming and the dynamics of child sexual abuse is crucial to police efforts to disrupt and prevent abuse. So, too, is challenging the myths of child sexual abuse. Dr Tidmarsh told us that when he started work with Victoria Police in 2007, there were still many myths and misconceptions about victim-survivor behaviours with respect to sexual crime. These included questioning the behaviour of the victim-survivor as contributing to the offending, querying the credibility of the victim-survivor and seeking an independent witness who saw the actual abuse take place.169 He said that research he conducted shows that, following training, police investigators were better equipped to see through these myths and misconceptions about victim-survivor behaviours.170 For example, investigators were less likely to blame victims.171

As well as specific professional development for police working in specialist police units, we have identified a need for continuous and contemporary training across Tasmania Police in ways to respond effectively to reports of child sexual abuse. Assistant Commissioner Higgins noted that general duties police officers are likely to be first responders in sexual abuse cases. A victim-survivor’s initial contact with first responders and investigators affects their ongoing trust in the criminal justice system.172

It is also important that police officers receive ongoing professional development. Judith Cashmore AO, Professor of Socio-Legal Research and Policy, Sydney Law School, University of Sydney, told us: ‘Interviewing child witnesses is a complex task and requires
training, monitoring and feedback on an ongoing basis; it is not a single-shot “inoculation”’.173

Dr Tidmarsh also stated that not all gains from training are maintained once 12 months have elapsed—there is a need for a continuous approach to professional development.174

In Chapter 19, we recommend a whole of government approach to professional development on responding to trauma (Recommendation 19.2). Police members who have contact with victim-survivors will benefit from this professional development.

Finally, we note that, in addition to formal training, using witness intermediaries can improve police capacity to respond to the needs of child witnesses. We discuss Tasmania’s Witness Intermediary Scheme in Section 5.2.1.

Recommendation 16.3

Tasmania Police should review its professional development on child sexual abuse to ensure:

1. all police are trained in
   1. the dynamics of sexual abuse and the concept of grooming, and perpetrators’ use of these to facilitate a crime
   2. myths and misconceptions about child sexual abuse and disclosure
   3. responding to child and adult victim-survivors sensitively and with an understanding of trauma
2. child sexual abuse specialist detectives are trained in
   1. approaches to interviewing child and adult victim-survivors and vulnerable witnesses, including the Whole Story framework (or similar specialist interviewer training)
   2. understanding the vulnerability of specific groups of children (such as those in out of home care and youth detention) and common myths about these children
3. all police receive scheduled and regular refresher training and ongoing professional development.

1. Conducting effective investigations

In this section, we explore factors that support effective police investigations (beyond the interviewing process discussed above).

We look at how processes are working and consider whether there is scope to improve the effectiveness of police investigations through:

• conducting routine audits to ensure minimum standards for investigations are met
• ensuring quality audiovisual equipment is available where witness statements are taken about child sexual abuse
• improving access to forensic examinations in regional and remote areas.

Routine audits to ensure minimum standards are met

Auditing police files would help identify areas for improvement, enhance the quality of investigations and build public confidence in investigative processes.

Auditing also has an important role to play in creating accountability in cases where police decide not to investigate a report of child sexual abuse. Police have considerable discretion in deciding whether to proceed with an investigation. Auditing could provide visibility of, and accountability for, these decisions.

Tasmania Police does not have any organisation-wide performance measures for investigating child sexual abuse.175 Responses to child sexual abuse are conducted in line with the Tasmania Police Manual and the Initial Investigation and Notification of Child Sexual Abuse Guidelines. As noted, the guidelines came into force on 23 July 2021 and give police officers direction when they receive a report of child sexual abuse. They specify that a single investigator should lead child sexual abuse cases for the entire investigation wherever possible.176

We welcome these minimum standards for conducting police investigations into child sexual abuse. We consider the next step is to put processes in place to ensure these standards are met.

Victoria Police told us that every file run by its specialist unit is reviewed by a superior who checks for compliance against requirements before the file is closed or ‘paused’ (noting that some victim-survivors decide to return and pursue a process later).177

Tasmania Police supports measures to oversee police investigations into child sexual abuse. Commissioner Hine told us that Tasmania Police wants to do random audits on how it is dealing with child exploitation matters as well as family violence matters.178 He said that these audits could be conducted by its Professional Standards or another management review team and could ensure police are getting feedback, doing the right

thing and identifying what they need to learn.179 According to Commissioner Hine, the random audits would also enable Tasmania Police to differentiate between districts and identify factors such as response rates, matters that were not pursued and how long investigations took.180

In New Zealand, the Independent Police Conduct Authority conducted an inquiry after discovering more than 100 child abuse investigation files in one branch that had seen little or no progress on the original complaint. The Authority then urged New Zealand Police to conduct a nationwide audit of child abuse investigations. Among other things, the Authority recommended establishing a process to audit child abuse investigations that included random file sampling.181

New Zealand’s Quality Assurance and Improvement Framework was introduced nationally in February 2016.182 It aims to provide consistency in family violence, child protection and sexual assault investigation processes and practice.183

Recommendation 16.4

1. Tasmania Police should develop and implement quality audit and assurance processes for investigating child sexual abuse offences, including random file sampling.
2. File sampling should:
   1. capture data on how well police are complying with procedures for investigating child sexual abuse offences, including the requirements set out in the Initial Investigation and Notification of Child Sexual Abuse Guidelines
   2. assess whether
      1. contact was made with the person reporting child sexual abuse
      2. every effort was made to establish the victim’s identity and to assess and investigate the report, where appropriate
      3. a thorough examination of intelligence on Tasmania Police databases was conducted
      4. cross-agency and interstate requests for information checks were made to determine whether any intelligence held outside Tasmania might assist the investigation
      5. contact details of the investigating officer were provided to the victim, parent, guardian or other support person
      6. a supervisor confirmed whether the above actions were taken
   3. capture data on the timeliness of investigations
   4. go beyond technical adherence to requirements and assess the overall quality of police investigative responses and outcomes for victim-survivors, including identifying any opportunities for improvement.

Quality of audiovisual recordings

Child sexual abuse is typically committed in secrecy and without direct witnesses.184 Therefore, the complainant’s account of what happened is the main evidence and, in many cases, the only evidence against the abuser. The quality of pre-recorded audiovisual interviews is extremely important because the pre-recorded interview is likely to be used as the complainant’s evidence-in-chief (that is, it provides the foundation of the prosecution’s case). A poor-quality recording, or an ineffective interview, may also mean that a complainant has to retell their experience, something that should be avoided if possible.

Where the complainant in a child sexual abuse matter is still a child, the prosecution is generally allowed to use their pre-recorded police interview in court, as some or all of the complainant’s evidence-in-chief. This aims to reduce the stress placed on the complainant by giving evidence in court. It can also improve the quality of the evidence the complainant gives, because the interview can be conducted shortly after the abuse is reported to police, rather than months later when the trial begins. In instances where the complainant is a child, this also helps give the jury a more accurate visual representation of the age and vulnerability of a child closer to the time of the offence. These issues are discussed further in Section 5.

The DPP told us that, while the technical quality of audiovisual recordings has improved over recent years, there are still problems. For example, there have been instances where the camera equipment has failed and the recording has not been available, or the quality of the audio has been poor.185 At times it is difficult to discern the subtleties of a witness’ demeanour due to the positioning of the camera.186 The DPP recommends reviewing the facilities in all interview rooms to ensure they are appropriate for children and vulnerable witnesses and to ensure visual images include a close-up of the complainant.187 We support this suggestion.

Commissioner Hine indicated that Tasmania Police uses several methods to record interviews, and the quality of these recordings can fluctuate.188 Most large police stations have vulnerable persons’ interview rooms or ‘soft’ interview rooms (discussed in Section 3.2.2). These may use a standalone video recorder or another recording system.189 Police officers have also conducted interviews using their police-issued tablets, and this can be effective.190

Commissioner Hine further noted that Tasmania Police is moving to provide new interview cameras to larger police stations, but they are not yet installed in soft interview rooms.191 Commissioner Hine told us these cameras are of high quality and are designed to be discreet.192 Commissioner Hine also informed us that better interview rooms are part of the planned design for the multidisciplinary centres.193 These centres will roll out from 2023.194

Recommendation 16.5

Tasmania Police should:

1. review the adequacy and availability of equipment used to record evidence by video or audio, and ensure this equipment is available in all police facilities where victim statements relating to child sexual abuse are taken
2. ensure specialist child sexual abuse police officers receive training on the use of recording equipment and refresher training if they have not used the equipment for six months or more.

Improved access to forensic examinations in regional and remote areas

As part of a police investigation into child sexual abuse, a child may be asked to undergo a forensic medical examination. Forensic medical examinations are conducted by specially trained professionals.

A forensic examination is important in some cases, but often it is of little assistance. For example, it may be of limited use in non-penetrative offences. Even where there is penetration, forensic evidence may not be conclusive. In most cases of historical child sexual abuse, a forensic examination will not be of any use.

The process for conducting forensic examinations is outlined in the Tasmania Police Manual. The manual states that examinations of victim-survivors must be undertaken in a coordinated way between the medical examiner, police, crisis support services and/or the Child Safety Service if the victim is a child.195

Forensic Science Service Tasmania has developed a Sexual Investigation Kit for collecting evidence in sexual assault cases.196 These kits are held at each major hospital and can only be used by a trained medical practitioner.197 An Early Evidence Kit is used in cases where there is a delay in a full examination. These can be used at any location and are designed for the victim-survivor to take samples under the guidance of a second person.198 Early Evidence Kits are held at rural police stations and at Hobart, Launceston, Burnie and Devonport police stations.199

Commissioner Hine explained to us how forensic examination processes work. He told us that whenever Tasmania Police receives a report of child sexual abuse, a notification is made to the relevant support service organisation for the area.200 According to Commissioner Hine, all regions have strong protocols for the forensic procedures in sexual assault cases.201 The Tasmania Police Manual stipulates that, before conducting a forensic examination of a child, consultation must occur with paediatric specialists:

• in the Southern police district, the on-call paediatrician at Royal Hobart Hospital
• in the Northern district, the on-call Sexual Assault Forensic Examiner Nurse
• in the Western district, the on-call paediatrician at North West Regional Hospital.202

Kathrine Morgan-Wicks PSM, Secretary, Department of Health, told us that although sexual assault forensic examinations are available across the State, there may be delays in accessing a forensic medical examiner due to limited availability, particularly out of hours if the on-call staff are busy attending to urgent medical cases.203 Secretary Morgan-Wicks also informed us that if a victim-survivor is in a rural area, the distance required to attend an examination facility may cause delay. For example, she noted that the only examining facility in the North West is at North West Regional Hospital.204 Commissioner Hine also said that time delays can occur for children living in remote areas.205

Secretary Morgan-Wicks further noted that while the North West does not have a formal acute paediatric sexual assault service, it has two senior paediatric specialists with training and experience in paediatric sexual assault. However, she noted there are times when children requiring assessment in the North West need to travel to Launceston.206

Secretary Morgan-Wicks stated that because these occurrences are relatively infrequent, there can be some confusion about the process, with presentations occurring to police, general practitioners, rural hospitals and emergency departments. She noted that the counsellors at the Sexual Assault Support Service and Laurel House can offer extra support and information to victim-survivors.207

At a stakeholder consultation in Burnie, participants spoke of a shortage of practitioners who can do forensic examinations in the area, with most children under 13 who require an examination having to travel to Launceston. This contributes to their distress. We were told of a child who presented at 8.00 pm but could not be examined until 1.00 pm the next day, and was unable to shower—noting that using the toilet or eating during that period also risked compromising forensic evidence.208

We observed that the Department of Health does not require a standard level of training for forensic examiners across the State. The level of training in different regions ranged from a ‘tertiary level qualification in the Medical and Forensic Management of Adult Sexual Assault through the New South Wales Education Centre Against Violence’ to an internal course run by the Tasmanian Health Service.209

Child sexual assault examinations require specialist skills and, again, we saw variation between the regions in the services available for children. In northern Tasmania, examinations are conducted by medical staff (paediatricians, gynaecologists or general practitioners) who have undergone ‘formal training in child sexual assault’.210 In southern Tasmania they are conducted or supervised by paediatricians with training from Monash University.211 The North West does not have a ‘formal acute paediatric sexual assault service’, but Secretary Morgan-Wicks advised that the two senior paediatricians in the region have ‘training and experience in paediatric sexual assault’.212

Children in all areas of Tasmania should be able to receive a child-friendly, trauma-informed forensic medical examination in a timely manner. While it would be preferable for a paediatrician who is trained in sexual assault to undertake forensic examinations with children, this may not always be possible.

Therefore, increasing the availability of forensic medical examinations for children will likely require increasing the skills of doctors and nurses around the State to undertake paediatric forensic medical examinations. This may involve training existing adult sexual assault forensic examination services to examine child victim-survivors. In other areas, where no sexual assault forensic examination services exist, the Department of Health should ensure suitably qualified local health practitioners are trained and supported in conducting forensic medical examinations for sexual assault.

Recommendation 16.6

1. The Department of Health should increase the availability of forensic medical examination services for child victim-survivors of sexual abuse to ensure all child victim-survivors can access an examination with minimal delay. To achieve this, the Department should:
   1. train existing adult sexual assault forensic medical examination services to examine child victim-survivors
   2. ensure, in areas of Tasmania where no sexual assault forensic medical examination services exist, suitably qualified local health professionals are trained and supported to conduct forensic medical examinations for child sexual abuse.
2. At a minimum, the training should include:
   1. an external, recognised qualification in forensic medical examinations
   2. external recognised training in sexual abuse care for children.

1. Implementing police complaints and oversight mechanisms

Our Commission of Inquiry mostly focused on government institutions whose primary functions relate to the care and supervision of children. However, during our Inquiry, we also received information about alleged child sexual abusers who were police officers, which caused us concern about how allegations of child sexual abuse against police officers are reported and dealt with.

Due to the relatively limited evidence we received on this topic, as well as time constraints, we have not explored this issue in detail. But based on what we heard, we consider that strong measures are needed to ensure independent oversight and accountability in cases where a police officer is alleged to have committed child sexual abuse. This will assist Tasmania Police to meet its obligations under the Child and Youth Safe Standards and the Reportable Conduct Scheme.

We start by sharing a question raised by Azra Beach, a victim-survivor, who alleged she was abused by several individuals, including a police officer. Ms Beach asked:

… when someone wishes to proceed with historical sexual abuse charges that involve a member of Tas Police, what guarantee does the survivor have that it will be investigated fully and appropriately? ... I feel like there needs to be someone independent investigating, not Tas Police …213

Commissioner Hine told us of 22 instances of complaints or information received concerning allegations related to child sexual abuse involving Tasmania Police officers since 2000.214 We also note the recently reported case of Paul Reynolds, a police officer, who was investigated for child sexual abuse shortly before his death by suicide in September 2018.215

The following case example describes what we heard about the police handling of these allegations against Paul Reynolds. As we set out, in September 2018, Paul Reynolds was afforded a full police funeral, with a guard of honour. Yet his death followed significant police investigations and reports about his possible sexual abuse of multiple children, among other concerns.

Case Example: Tasmania Police complaints handling—Paul Reynolds

Paul Reynolds served as a Tasmania Police officer for almost 40 years. Shortly before his death by suicide in September 2018, he was investigated for child sexual abuse offences. The circumstances surrounding his death have been the subject of coronial proceedings and reported in the media, and we do not intend to repeat them here.

We heard that in 2008, police officers from an interstate police force were delivering training to Tasmania Police officers in Tasmania. After the first day of training concluded, at drinks at the Tasmania Police Academy bar, an interstate police officer alleged that a conversation occurred suggesting that then Inspector Reynolds was ‘a paedophile’.216 Two Tasmania Police officers, both with the rank of Inspector, reportedly gave examples of concerning behaviour.217

One Inspector reportedly said he had visited Inspector Reynolds’ home and saw him with a 15-year-old boy between his legs, giving him a massage. Another Inspector reportedly said that his wife had been approached by people in the community concerned about Inspector Reynolds’ behaviour around young boys.218

We were told that the interstate police officer who was present during this conversation became concerned ‘about the nature of the discussion and potential truth around such serious allegations’ and reported it to a Tasmania Police Divisional Inspector.219 The Divisional Inspector then briefed the Commander of Internal Investigations.220

Shortly after, Darren Hine, then Deputy Commissioner, Tasmania Police, wrote to the Inspectors who had reportedly described the concerning behaviours, asking them to respond to the interstate police officer’s report.221 Both Inspectors replied to the Deputy Commissioner suggesting there had been a misinterpretation of comments made and that it had not been said Inspector Reynolds was a paedophile.222 An Assistant Commissioner who was present when the conversation was alleged to have occurred was also approached to make a statement. Before providing his response, the Assistant Commissioner had been made aware of the responses of the Inspectors to the allegations against Inspector Reynolds. The Assistant Commissioner wrote a response indicating there was no mention of paedophilia in the bar that evening and that he did not believe there was any basis to pursue the matter further.223 He suggested that the interstate police officer had ‘seriously misunderstood’ the conversation and said such an allegation had ‘potentially very damaging consequences for a person wrongfully accused’.224

After receiving this advice, the Commander of Internal Investigations wrote to the Deputy Commissioner that ‘the weight of evidence suggests [the interstate police officer] was either mistaken or misinterpreted’ the comments.225 In the absence of anything other than the interstate police officer’s account, the Commander wrote that there was ‘no other evidence’ available.226

The two Inspectors were advised that the matter would be closed and filed for future reference.227 The advice recommended that Inspector Reynolds not be told (given he was apparently unaware of the allegation) to avoid ‘dissension between him’ and the two Inspectors.228

In 2012, Inspector Reynolds reverted to the rank of Senior Sergeant following concerns about his work performance.229

In 2018, a senior police officer lodged a complaint using a tool (Blue Teams) for making complaints about colleagues.230 It was alleged that Senior Sergeant Reynolds had sent and received child exploitation material and had groomed young men (including some involved with a local football club).231 Shortly after these allegations, police searched his home and Senior Sergeant Reynolds died by suicide.

Senior Sergeant Reynolds received a police funeral following his death, at which now former Commissioner Hine spoke and outlined Senior Sergeant Reynolds’ career.232

In 2022, Counsel Assisting the Coroner reportedly told an inquest into the deaths of four Tasmania Police officers (including Senior Sergeant Reynolds) that it was supposedly ‘widely known in Deloraine that [Paul Reynolds] was a paedophile’.233 We were told by Tasmania Police that it has ‘no evidence that that asserted reputation of Senior Sergeant Reynolds was previously known to any member of Tasmania Police’ before Senior Sergeant Reynolds’ death.234

We acknowledge that, from 2018, Tasmania Police eventually investigated Senior Sergeant Reynolds for child sexual abuse and other offences. However, it is concerning that a decade before Senior Sergeant Reynolds’ death there appeared to be credible reports that suggested an awareness (or at least a suspicion) of his engaging in inappropriate behaviour with children.

We consider that the approach to investigating the alleged conversation overheard by the interstate police officer was inadequate. The interstate police officer should have been invited to make a formal statement.

We are further concerned that Senior Sergeant Reynolds was given a police funeral. We received an anonymous submission from a community member who was ‘furious’ when they learned from a police contact that Senior Sergeant Reynolds had been investigated before his death for child sexual abuse offences.235 The community member wrote:

Why is it that Paul Reynolds was given a full police send off when he was under investigation before he killed himself? What impact has this public heroism had and will have on the alleged victims and their families?236

We share these questions. We can only imagine how distressing this would have been for those who heard rumours about Senior Sergeant Reynolds’ behaviour and believed them to be true. We are concerned by the Commissioner’s delivery of the eulogy, given the Commissioner was, at that stage, aware of the concerns about Senior Sergeant Reynolds.237

Commissioner Hine described the processes that apply when a police officer is alleged to have been involved in child sexual abuse. He told us that anything of that nature would go to the Professional Standards Command, which would investigate it under the direction of the Deputy Commissioner. The matter would then be reported to the Integrity Commission.238 We note that this process specifies where known cases are investigated but does not address the concerns of victim-survivors about how they make a complaint or about complaints mechanisms other than attending or phoning a local police station.

Under the Integrity Commission Act 2009, the Integrity Commission has the power to audit the way Tasmania Police (a public authority) has dealt with complaints of police misconduct.239 As well as audits of a class of police complaints, the Integrity Commission can undertake individual audits of police complaints.240 The Integrity Commission reported in its 2020–21 annual report that it had undertaken an audit of 30 complaints files with varying levels of seriousness, as well as one audit of an individual police complaints file relating to the use of force.241

Commissioner Hine said that after a matter has been reported to the Integrity Commission it then goes to the DPP to be dealt with in court.242

Commissioner Hine said that specific steps ensure the Professional Standards investigation is done independently from the area where the police officer is based, and that there is oversight from the Integrity Commission.243 He also pointed out that the issue is dealt with in the Commissioner’s Directions for Conduct and Complaint Management and Compliance Review (2021), which is a publicly available document.244 While this document sets out good processes for dealing with police misconduct, it is long (173 pages excluding appendices) and complex. And, while it refers to handling family violence complaints against police, it does not refer specifically to child sexual abuse. Noting that our Inquiry did not have the opportunity to explore this matter further in evidence, in our view this process is not transparent enough in terms of making victim-survivors aware of how to report child sexual abuse by a police officer. We also consider that the police investigation needs to be more independent than being overseen by the Deputy Commissioner.

Commissioner Hine said that, regarding family violence, there were issues relating to perpetrators or witnesses being police officers. Accordingly, Tasmania Police has changed its policy. There is now a review panel chaired by an independent person who looks at the investigation to ensure independence.245 Commissioner Hine noted that it would be a natural progression for Tasmania Police to convene a similar review panel where a police officer is alleged to have been involved in child sexual abuse.246

In Victoria, complaints against police can be made directly to the Independent Broad-based Anti-corruption Commission, but most are referred to Victoria Police for investigation.247 The Independent Broad-based Anti-corruption Commission oversees these investigations, which includes reviewing and auditing selected investigations.248

Victoria Police has established a specialist Sexual Offences and Family Violence Unit, formerly known as Taskforce Salus, in its Professional Standards Command to investigate allegations against Victoria Police employees involving sexual assault (including against children) or family violence.249 Victoria Police has also published an ‘options guide’ for victim-survivors of sexual assault or family violence perpetrated by Victoria Police employees.250 This guide is available online and sets out various options for reporting allegations.251 It explains the criminal complaints and investigation process and the internal disciplinary process. It indicates that interim action can be taken to suspend or transfer a Victoria Police employee who is under investigation.252

We strongly support the need for independent oversight of internal police investigations. More broadly, we emphasise that workplace culture is a key pillar in detecting and preventing most forms of unethical police behaviour.253 Supervisors and managers have significant influence over the culture of their workplaces and are positive role models of acceptable behaviours.254 We consider that professional development and strong leadership are required to ensure police uphold the highest standards.

We urge Tasmania Police to continue its path to improving police responses to reports of child sexual abuse, noting that strong accountability measures are required when allegations are made against police members. The cost of failing to rigorously investigate allegations of child sexual abuse is too high.

Tasmania Police has told us that planning is well advanced to establish a Family and Sexual Violence Involving Police Review Committee. An independent person will chair the committee. We are glad to hear of the intention to establish such a body.

Recommendation 16.7

Tasmania Police should:

1. establish a clear, publicly accessible process for reporting and responding to allegations of child sexual abuse against a member of Tasmania Police, including the ability to report to an entity independent of police such as the Integrity Commission
2. expand the domestic violence review panel to cover child sexual abuse and ensure independence in investigations when a member is alleged to have been involved in child sexual abuse.

1. Prosecution responses

The DPP is responsible for prosecuting serious criminal matters, including institutional child sexual abuse cases.

In recent decades across Australia, significant changes have improved how prosecution agencies respond to victim-survivors of child sexual abuse.

In this section, we outline how the ODPP deals with child sexual abuse offence cases, focusing on:

• prosecution specialisation and training
• complaints and oversight mechanisms.

We then consider whether there are opportunities to strengthen and improve responses, and whether the ODPP is adequately funded to meet an increased demand for its services. In Section 9, we consider the ODPP’s capacity to collect data and monitor outcomes in child sexual abuse cases.

1. Prosecution roles and responsibilities

The ODPP conducts criminal prosecutions in the Supreme Court and some summary criminal matters in the Magistrates Court. Prosecutors have a duty to present the case against an accused person fairly and honestly and to assist the court with submissions that allow the law to be properly applied to the facts.255 The DPP acts on behalf of the State and is independent of the police and the courts.256

The prosecution has the responsibility to make decisions in line with the Criminal Code Act 1924 (‘Criminal Code Act’) and the DPP Prosecution Policy and Guidelines (‘DPP Guidelines’) including:

• whether to start a prosecution
• whether to discontinue a prosecution
• the appropriate charge to be laid against an accused person
• whether to accept a plea of guilty to a lesser charge.257

These decisions can have a significant impact on victim-survivors.

The National Royal Commission made recommendations in its Criminal Justice Report that were directed at each Australian DPP.258 The recommendations made to prosecuting authorities mostly relate to consultation, providing information to victim-survivors for court and having robust and transparent decision-making processes (particularly for decisions to discontinue or drop charges).259 Tasmania’s ODPP advised us that it has implemented all the National Royal Commission’s recommendations for which it is responsible.260

The ODPP referred to improvements it had made in dealing with child sexual abuse. In particular, the ODPP referred to:261

• creation of the Witness Assistance Service, which began in July 2008262
• introduction of a pre-charging advice service for Tasmania Police263
• establishment of a victims’ right of review to the DPP of decisions made by the ODPP264
• implementation of detailed policies about how decisions that affect victims are made.265

The DPP told us that the ODPP prioritises sexual offence prosecutions, giving precedence to matters where the victim is still a child, where there are child witnesses and where a pre-recording will be conducted in court under the Evidence (Children and Special Witnesses) Act 2001 (‘Evidence (Children and Special Witnesses) Act’).266 Also, where the victim is still a child, there is a direction from the Chief Justice that the ODPP informs the Supreme Court. Once this occurs, a judge case-manages the matter.267

The DPP also advised us that child sexual abuse prosecutions are treated differently from other prosecutions in the following ways:

• The ODPP has generally provided pre-charging advice to Tasmania Police before the accused person is committed for trial. We discuss the pre-charging advice service in Section 4.4.1.
• It is the ODPP’s practice to have early and ongoing contact with victims of sexual offences.268 This contact occurs mainly through the Witness Assistance Service, which we discuss in Section 4.4.2.

1. Communicating with and supporting
   victim-survivors

As with police, victim-survivors told us of mixed experiences with prosecuting authorities. Some victim-survivors were positive about their experiences with prosecutors. Katrina Munting, a victim-survivor, told us that the support staff at the Witness Assistance Service from the ODPP were excellent. She described the woman she worked with as ‘the kind conduit between myself and the terrifying Supreme Court and lawyers’.269 Although Ms Munting did not spend a great deal of time with the Crown Prosecutor, she told us ‘was very kind, understanding and patient in all our interactions’.270

By contrast, Leah Sallese, a victim-survivor, said that she had a ‘terrible time’ during the prosecution stage in 2017 and noted that it was retraumatising to have to repeat the same information.271 In response to Ms Sallese’s evidence, the DPP provided our Inquiry with documents indicating how prosecutors handled Ms Sallese’s case.272 While our Inquiry does not suggest that these prosecutors were at fault, it is clear, and the DPP acknowledges, that the criminal justice system can be difficult for victims.273

There may be circumstances where complainants need to retell their stories to multiple people on multiple occasions. The issue is particularly acute where disclosures are made bit by bit. This emphasises the need, of which the DPP is conscious, for sensitive and trauma-informed processes in the ODPP. The recommendation made below for professional development for prosecutors and other ODDP staff and the availability of the Witness Assistance Service should help address this issue.

Robert Boost, a victim-survivor, told us that the decision of the ODPP not to proceed with his case after he reported to police in 2020 left him feeling as if the person he alleged abused him still had power over him. Mr Boost said he felt ‘that the system is there to protect [the alleged abuser], not me’.274

Mr Boost said he felt a ‘deep sense of injustice’ when the ODPP declined to proceed to trial with his matter because of insufficient evidence:

There is a real imbalance in these ‘historical’ cases. I was a little kid when I was abused, faced with a perpetrator in a position of power. That power imbalance must be factored in by the DPP when they consider whether or not to run a case … I was dismissed by the perpetrator as a child, and the system is still dismissing me as an adult now.275

Kerri Collins, a victim-survivor, told us that she learned two weeks before the trial was to begin that the ODPP had decided not to proceed with the prosecution. Ms Collins said she wrote to the ODPP expressing her ‘utter horror’ at what had been decided.276 She spoke to us about feeling powerless, as a victim, against the system.277

Ms Collins’ matter was dealt with in 2004. The DPP told us of changes in the law and greater emphasis on supporting victims since then, which means that Ms Collins’ case would be dealt with differently today.278

The DPP also told us that there is now an expectation in the ODPP of communicating with complainants throughout the prosecution process. The DPP Guidelines (updated in 2022) state:

Informing the complainant of the proposed discharge or reduction in charges is an important step in the process. It is important that the complainant understands the reasons why a decision is made. It is preferable that the complainant be informed of the reasons in person. However, if this is not possible, it should be done by telephone. When informing a complainant of the decision the prosecutor should advise how decisions are made, provide a brief history of the matter and brief reasons for the decision. The complainant should be given an opportunity to provide his or her views about the decision.279

The DPP stated that, in the past, communicating with victim-survivors was, to a large extent, left to the discretion of the counsel in charge of the matter.280 We are pleased to hear about this change in approach.

The DPP also stated that complainants are now notified of key decisions and have a right to request a review of a decision.281 Where the complainant is under 18 years of age or has disability, their parent, guardian or spokesperson will be notified.282 We discuss this in Section 4.3.

1. Prosecution specialisation

Child sexual abuse prosecutions can be difficult and complex. As noted, in relation to child complainants, these cases typically involve the word of a child against an adult, with no eyewitnesses and often a lack of forensic evidence. Those who prosecute child sexual abuse offences should have specialised skills and training in the law as it pertains to child sexual abuse and the nature and impact of child sexual abuse.

Terese Henning, Adjunct Associate Professor, Faculty of Law, University of Tasmania, recommends specialisation among the police and prosecution in sexual assault matters:

Expertise and special skills are needed to deal with these cases, in order to know what communication tools are available, and how to get the best evidence out of these kinds of witnesses. These cases need to be managed in particular ways, and you need to have particular expertise to manage them appropriately.283

The DPP told us that, since 2016–17, the ODPP has had a specialist Sexual Assault and Family Violence Team covering Hobart and Burnie.284 The purpose of the team is
to streamline sexual assault and family violence prosecutions and to facilitate oversight by a single Principal Crown Counsel to ensure consistency in approach and appropriate prioritisation.285

We support the specialist arrangements in the ODPP for child sexual abuse prosecutions. In Section 4.4, we consider the subject of funding to support specialisation.

1. Prosecutor training

The DPP told us that specific training for prosecuting child sexual abuse matters is mostly done ‘on the job’. The DPP stated that the team structure in the ODPP enables mentoring of staff, supervision of work and a knowledge of each practitioner’s workload and experience.286 New prosecutors are given the opportunity to act as the junior in contested matters before conducting a hearing or trial on their own.

The DPP Guidelines set out the duties of prosecutors, including those that apply to children and special witnesses.287 For this, the DPP Guidelines refer to the Australasian Institute of Judicial Administration’s Bench Book for Children Giving Evidence in Australian Courts.288 The Bench Book is primarily for judicial officers who deal with children giving evidence in criminal proceedings as complainants or witnesses, rather than for prosecutors. It covers the nature and impact of child sexual abuse, children’s evidence and coping skills, and suggested procedures for children giving evidence. It includes a suggested script to use in special hearings with children or cognitively impaired witnesses.289 The DPP Guidelines strongly encourage prosecutors with proceedings involving children or cognitively impaired witnesses to review the relevant portions of the Bench Book in preparing for trial.290

The DPP gave us examples of training provided to staff at Continuing Legal Education days, including:

• self-care and trauma, delivered by the Sexual Assault Support Service, June 2022
• interviewing complainants and leading evidence—in particular, children in the context of sexual assault—delivered by the Assistant Director (Summary Prosecutions), June 2022
• child sexual abuse and trauma-informed practice, delivered by the Sexual Assault Support Service, December 2021.291

The DPP also noted that Senior Crown Counsel are involved in and facilitate training courses. He said there are counsel in the ODPP who have considerable experience in prosecuting sexual abuse offences. The DPP stated that all practitioners are encouraged to, and regularly do, consult with experienced counsel.292

The DPP stated that it is always desirable for prosecutors to have ongoing training to help them prosecute child sexual abuse cases, including abuse in institutional contexts. The DPP noted that more training would be beneficial in the following areas:

• trauma-informed responses
• understanding the Evidence (Children and Special Witnesses) Act
• tendency and coincidence evidence
• issues that children may face in giving evidence in general and accommodations that can be made.293

We welcome the efforts the ODPP has made to train prosecutors on the nature and impact of child sexual abuse and the laws that apply to child sexual abuse offence prosecutions. We agree with the DPP that there is scope to build on and strengthen training, for example, to include training on the role of witness intermediaries.

It would also be helpful for defence lawyers to receive such training through The Law Society of Tasmania, or possibly Tasmania Legal Aid. Additionally, it might be possible to include prosecution lawyers sharing their experiences as part of the training.

Recommendation 16.8

1. The Office of the Director of Public Prosecutions should provide ongoing professional development to staff on child sexual abuse, including:
   1. specialist training on trauma-informed practice
   2. training on issues that children and adult victim-survivors may face in giving evidence and approaches that can be taken to make the process trauma-informed, including the role of witness intermediaries
   3. training on the laws of evidence and procedure that apply in child sexual abuse cases
   4. training on the nature, causes and methods of child sexual abuse and grooming, including addressing common myths about child sexual abuse.
2. The Office of the Director of Public Prosecutions should also explore opportunities with Tasmania Legal Aid and the Law Society of Tasmania for joint training on the dynamics of child sexual abuse and trauma-informed practice.

1. Complaints and oversight mechanisms

The ODPP has the power to decide whether to proceed with charges, what charges to proceed with and whether to discharge an accused person. These are significant decisions for complainants and accused people. Being involved in the criminal justice system is difficult for many complainants and their families, and it is inevitable that some of them will find the system unfair or insensitive. This makes it particularly important that there are internal review processes and clear and effective complaints mechanisms.

The National Royal Commission recommended that each Australian DPP:

• has comprehensive written policies for decision making and consultation with victim-survivors and police
• publishes all policies online
• provides a right for complainants to seek written reasons for key decisions
• offers opportunities to discuss the reasons for decisions in person before written reasons are provided.294

The DPP advised us that every decision to prosecute or to discharge a matter is internally reviewed.295 The DPP explained the process as follows:

• When enough relevant information has been provided, the lead prosecutor must determine whether, in their view:
  • an indictment should be filed
  • the accused person should be discharged
  • alternative summary charges should be laid.296
• The prosecutor must prepare a memorandum setting out:
  • facts that are essential to the charges to be considered
  • strengths or difficulties with evidence, including with witnesses
  • possible legal arguments
  • the prosecutor’s thoughts on the likely resolution.297
• The memorandum must be forwarded to the DPP, or to a committee whose members include the Deputy Director and Principal Crown Counsel.298 In most cases, the memorandum is forwarded to the committee in the first instance. Generally, memorandums are only forwarded to the DPP in the first instance for charges that require the DPP’s authorisation.299
• If an indictment on the same or similar charges for which the accused person has been charged and/or committed is sought, one other member must agree with the lead prosecutor. In the case of any committee member making the recommendation, the agreement of another member is required.300
• If discharging the accused person is recommended, the agreement of two committee members is required unless the recommendation is that of a committee member, in which case the agreement of another committee member is required.301
• If the recommendation is to prosecute the accused person on the same or similar charges but one member of the committee recommends a discharge or a substantial downgrading of charges, then two other committee members must also agree with such a discharge or downgrading of the charges.302 Where the committee cannot agree in these terms, the matter is forwarded to the DPP for review and determination.303
• The DPP can overturn a committee decision.304

The DPP informed us that a decision to indict or discharge an accused person in a case involving child sexual abuse is considered in the same way as for any indictable crime. In most cases, it will involve a discussion with the complainant before a final decision is made.305 If prosecuting an accused person discontinues after charges have been laid, detailed reasons for the discharge must be clearly documented.306

The DPP Guidelines state that ‘ordinarily’ a letter should be provided to the complainant confirming that the charges will not proceed and that the complainant has a right to request the DPP to review that decision.307 The DPP Guidelines do not require the letter include an explanation for the decision, but complainants may request written reasons for decisions.308 The ODPP told us that usually staff meet with complainants to explain why a decision not to proceed with a prosecution has been made.309

A complainant may apply to have the DPP review a decision to discharge an accused person or substantially downgrade a charge against an accused person (unless the decision was approved by the DPP).310 Requests for review are generally to be made within seven days of notification of the decision.311

The DPP Guidelines state that a final decision to discharge an accused person will only be overturned if it is plainly wrong (that is, it was based on incorrect or irrelevant material or was plainly unreasonable, or unless new evidence becomes available).312 The DPP told us that he will also overturn a non-final decision if a complainant requests him to review that decision and he disagrees with the decision.313 The DPP Guidelines do not allow for reviews of DPP decisions, but a complainant may request to meet with the DPP or Deputy Director to have the reasons for the decision explained.314

Some people shared their dissatisfaction with us, not only with the decisions made on their matters but also with the way the ODPP handled their complaints or concerns.

One victim-survivor told us of their disappointment at being told in 2014 that there was not enough evidence to charge the person who abused them, only later discovering that there were more victim-survivors abused by the same person:

I was also advised by the Public Prosecutions Office that any review of the decision not to prosecute [the abuser] would have to be made to Daryl Coates SC [the DPP] as “there was no formal procedure for review”.315

We are pleased that there have been changes to the process since 2014.

The mother of another victim-survivor described her family’s ‘heartbreak’ when advised in 2006 by a former DPP that her daughter’s complaint would not proceed, despite initially being assured they had an extremely good case.316 Later, they tried again with a subsequent DPP, only to be told that he could not overrule the previous decision. She said: ‘DPPs are not God, and therefore decisions … should be able to be overturned by another DPP’.317 (Refer also to the experience of Kerri Collins, described in Chapter 5).

The National Royal Commission considered whether there should be judicial review of DPP decisions.318 Judicial review is when a court reviews a decision made by a public authority to ensure the decision is legal and that the decision maker considered everything that was legally relevant. In reviewing a decision, a court considers whether the decision was valid but does not review the merits of the decision itself (that is, a judicial review does not reconsider the facts of the matter or focus on whether the decision was correct). If a court is satisfied that the grounds for judicial review have been established, it can set aside the decision and refer it back to the decision maker for further consideration.

The DPP told us that he does not support judicial review of prosecutorial decisions.319 In considering whether there should be judicial review of decisions by Directors of Public Prosecutions, the National Royal Commission cited longstanding judicial authority that has held that the integrity of the judicial process, including its independence, would be compromised if the courts were to decide or be in any way concerned with decisions about who is to be prosecuted and for what.320 In light of strong opposition from Directors of Public Prosecutions and noting the position of the High Court, the National Royal Commission did not consider that judicial review would be likely to provide an effective means for victim-survivors to get a review of prosecutorial decisions.321 We share the National Royal Commission’s reservations about judicial review.

The National Royal Commission noted that in the absence of judicial review it is critical that Directors of Public Prosecutions and Offices of Directors of Public Prosecutions, and relevant governments, ensure complaints mechanisms for internal merit reviews are robust and effective.322 The National Royal Commission recommended that Directors of Public Prosecutions establish robust and effective internal processes to audit their compliance with policies for decision making and consultation with victim-survivors and police.323 Like the National Royal Commission, we emphasise the need for robust and effective mechanisms for internal merit reviews. We also note that care and diligence should be applied not only to the decision itself, but also to how it is delivered and explained to victim-survivors and their families.

The DPP informed us that, since 2017–18, the ODPP has conducted annual audits of discharge files for compliance with the DPP Guidelines. The DPP stated that 30 per cent of discharged cases are randomly selected and benchmarked against the DPP Guidelines in respect of a discharge.324 The ODPP noted that the audit results are published in its annual reports. The ODPP has also reviewed historical matters, noting that the standard of record keeping has significantly improved in the past 15 years.325 The DPP stated that, following the annual audit, an email is sent to all staff to remind them of the discharge procedures and to identify any deficiencies in practice.326 We welcome this change.

1. Properly funding and resourcing prosecution services

In this section we outline what we heard about funding and resource challenges for the ODPP and the impact this is having on its ability to meet demand.

We heard evidence that the increasing workload is placing pressure on the ODPP and resulting in:

• delays in providing pre-charging advice to police
• an inability of the ODPP’s Witness Assistance Service to provide services to witnesses in cases other than sexual offence matters
• delays in prosecuting criminal cases.

These challenges are discussed in the sub-sections below.

We note that extra funding was provided to the ODPP in the 2022–23 Tasmanian Budget to help it reduce the backlog of cases in the Supreme Court.327

1. Delays in pre-charging advice

The National Royal Commission recognised the importance to victim-survivors of having the correct charges laid against an accused person as early as possible, so charges are not significantly downgraded or withdrawn at (or close to) trial. It made a recommendation to this effect.328 The National Royal Commission noted that victims and their families are likely to experience significant distress if they believe there will be a criminal trial and are later told that the charges against the accused person will be dropped.329

Tasmania Police regularly requests and receives pre-charging advice from the ODPP on various matters, including child sexual abuse.330 The ODPP provides the pre-charging advice service to police before charging a person with ‘any sexual assault crime’ in circumstances where there may be a question about the appropriateness of charges or the sufficiency of evidence.331 Individual detective inspectors receive a file from investigators, via their supervisors, and assess the file. If specific advice is required before charging an accused person, the file is forwarded to the ODPP.332

Under section 125A of the Criminal Code Act, the approval of the DPP is required before a charge can be laid for the offence of persistent sexual abuse of a child or young person. Approval is also required under section 105A for the offence of failing to report the abuse of a child. Under protocols between the DPP and Tasmania Police, the DPP must be notified within four working days of charges for other sexual offences.333

According to Commissioner Hine, the arrangements ‘work well’ and Tasmania Police has discretion on whether to charge, based on the evidence at hand. Police can seek advice if in doubt.334

Commissioner Hine considers that the ODPP pre-charging advice service is effective at reducing the likelihood of charges being dropped, downgraded or dismissed due to better, more timely advice on the correct charge selection or on possible deficiencies in the evidence necessary to charge an accused person.335

Commissioner Hine considers that, while the police should be able to charge based on their discretion, for charges of persistent sexual abuse of a child or young person, DPP authorisation is appropriate because the process ensures the details that form the basis of an indictment are correct.336

The DPP stated that the benefits of pre-charging advice are well recognised, and it is an integral part of the work in the ODPP.337 According to the DPP, the pre-charging advice service ensures:

• correct charges are laid at an early stage
• early advice is given about the prospect of gathering more evidence (where evidence is gathered before charging, there is less likelihood of the case being dropped after proceedings have started)
• matters with no reasonable prospect of conviction do not proceed, avoiding false expectations among complainants.338

Although Tasmania Police and the DPP value the pre-charging advice service, the DPP told us that resourcing constraints create delays in providing the advice. The ODPP aims to have advice completed within six weeks of referral.339 In a consultation with us, and in its most recent annual report, the ODPP conceded that the six-week deadline for providing advice to Tasmania Police was not being met due to volume and resourcing pressures.340 Between 1 January 2012 and 31 April 2022, the average time an advice file remained in the ODPP was 15.3 weeks.341 This is a long wait for a complainant to find out whether a prosecution is likely to proceed.

A participant in our stakeholder consultation in Devonport noted the need for the ODPP to be adequately resourced to provide timely advice to police, with wait times of up to nine months in Devonport.342

The DPP stated that these files are complex and time-consuming.343 The DPP also noted that these files are taking longer to review because many contain audiovisual statements, which can be more difficult to follow and longer to listen to and watch than written statements.344 According to the DPP, they sometimes include irrelevant or inadmissible material and may not describe events in sequence.345 We note that care needs to be taken with such statements—the Whole Story framework (discussed in Section 3.2) may produce material that appears irrelevant to a lawyer but is an important part of the complainant’s story of the abuse.

The DPP stated that pre-charging advice to Tasmania Police is mainly provided by the Sexual Assault and Family Violence Team.346 However, he noted that, more recently, charging advice has been provided by Crown Counsel outside of the team because the team has not been able to service an increase in workload.347

The DPP is of the view that the pre-charging advice targets could be better met if they had specialist prosecutors dedicated to providing this advice, without also having to conduct other criminal prosecutions. This is because urgent criminal work and court deadlines mean that pre-charging advice does not always get the priority it needs.348

1. Witness Assistance Service challenges

The National Royal Commission recommended that the prosecution Witness Assistance Service be funded and staffed to ensure it can perform its tasks of keeping victim-survivors and their families informed and putting them in contact with relevant support services.349

The ODPP established the service in 2008 to support witnesses and victims and their families while they go through the criminal justice processes.350 The DPP informed us that the number of staff employed in the service has increased steadily since 2008.351 Qualifications of staff include legal, psychology, criminology, social science and social work degrees.352

The Witness Assistance Service provides services to complainants and vulnerable witnesses, including:

• helping witnesses to understand court and legal processes
• providing information on court dates and outcomes
• offering support during charge selection, negotiation or discontinuance
• arranging, and supporting witnesses in, meetings with the prosecutor
• showing witnesses court facilities ahead of giving evidence
• supporting witnesses in court or on video link, or while waiting to give evidence
• helping to prepare victim impact statements
• providing a post-court briefing and helping to organise ongoing support.353

Sexual assault cases have been automatically allocated a Witness Assistance Service Officer since 2010.354 The DPP outlined how the service operates:

• Once an accused person is charged with a sexual assault offence, Tasmania Police notifies the ODPP within four working days.
• Within two days of that notification, the Sexual Assault Liaison Clerk writes to the complainant to explain the usual course of proceedings.
• Following notification that charges have been laid, the Sexual Assault Liaison Clerk forwards a copy of the notification to the Witness Assistance Service Manager, who allocates the matter to a Witness Assistance Service Officer. This officer is responsible for contacting the complainant and providing any updates.355

The DPP informed us that a Witness Assistance Service Officer generally contacts a complainant in a child sexual abuse case before any application for bail and notifies the complainant of the outcome of any such application.356

The DPP noted that, as much as possible, allocated Witness Assistance Service staff continue working on a child sexual abuse matter until it is resolved.357

Ms Munting, also quoted above, described how someone from the Witness Assistance Service assisted her:

The woman I worked with was so kind and understanding of my anxiety surrounding every step of the process … She also arranged for a private session in one of the courtrooms at the Supreme Court. This allowed me to know what to expect when I attended; the ‘feel’ of the room, who would be positioned where, what I needed to do at each point, to practice sitting in the witness box prior to the hearing, and to practice my victim impact statement in the same setting it would be required.358

Another victim-survivor acknowledged the significant support she received from a Witness Assistance Officer, adding:

Given my experiences, I believe it should be standard practice for victims/survivors of crime involved in criminal cases to be given a package of information up-front explaining the roles and responsibilities of the Witness Assistance Service, the roles and responsibilities of the Witness Assistance Officer, the court process, the availability of support services and the dos and don’ts of being a witness.359

According to the DPP, the Witness Assistance Service is funded and staffed to ensure it can perform its tasks of keeping sexual abuse victims informed and connecting these victim-survivors with relevant support services.360 The DPP advised us that contact with victim-survivors of sexual abuse offences is the service’s priority. However, he noted the growing demand for the service is affecting the assistance it can provide to other complainants and vulnerable witnesses.361 The DPP told us that, because priority is given to sexual abuse matters and matters involving children, the Witness Assistance Service is funded well enough to meet these priorities.362 However, the DPP noted that this limits the ability of the service to help other vulnerable complainants and witnesses.363 The DPP also advised that contract positions make it difficult to keep qualified and suitable staff, stating that it would be much better if the positions were permanent.364

1. Delays in prosecuting criminal cases

The DPP told us that the ODPP struggles with criminal processes, workload increases and increased pressure because of a backlog of cases in the Supreme Court.365 He stated that the effects of the increased workload and the resulting delays are significant for victim-survivors, accused people, witnesses, ODPP staff and the quality of justice.366

Delays can be highly distressing for victim-survivors and compromise their willingness and ability to take part in a criminal justice process.

Ms Munting told us:

Each time there was another delay, another adjournment, or not meeting the next expected progress point, it tore me apart. I was so determined not to give up; however, the process drove me ever closer to suicide as I could not cope.367

The DPP told us of increasing pressures on the ODPP, noting:

• There is a relatively small pool of counsel, Crown and defence with experience in sexual offence cases. The DPP said this causes issues with continuity of counsel and adds to delays.368
• There has been an increase in pre-trial directions hearings and special hearings under the Evidence (Children and Special Witnesses) Act.369 The DPP said that, while the provisions under this Act are well used and of great benefit, they inevitably lead to delays and affect the backlog.370
• The ODPP has a limited number of Senior Crown Counsel available to conduct complex prosecutions, including prosecutions for sexual abuse offences. The DPP said that junior practitioners have been employed but it will take time for these practitioners to gain the skills and experience necessary to prosecute sexual abuse offences.371 The DPP noted this creates more pressure and requires more resources for training, continuity of counsel and delays.372

The DPP stated that, overall, the lack of resources is a problem. He noted that the workload of the specialist prosecution unit continues to increase and there are not enough resources to keep up with demand.373 The DPP further stated that the criminal backlog cannot be properly addressed without a sizeable increase in ongoing funding to the ODPP and corresponding funding for criminal defence services.374 Since the DPP’s statement to us in June 2022, the Tasmanian Government has increased funding for staff in the ODPP to help reduce the backlog of criminal matters in the system.375

KPMG conducted an independent review into the ODPP in 2010.376 The review concluded that, compared with similar jurisdictions, the Tasmanian ODPP was efficient and effective. KPMG suggested that there was little, if any, scope for further efficiency from the then resource base.377

The DPP stated that the review resulted in a substantial increase in funding for the ODPP in the 2012–13 Tasmanian Budget, but that the extra funding was taken from the ODPP in the 2013–14 and later budgets.378 He stated that funding was subsequently given to the ODPP for other work, such as the Child Safety Group and the Unexplained Wealth Unit.379

The DPP told us there have been small increases for the criminal section before the past two budgets to account for rises in salaries and rent, and for the Sexual Assault and Family Violence Unit. He said that the 2021–22 Tasmanian Budget provided about $1.4 million to the ODPP for the new high-risk offenders legislation, which imposes significant obligations on the ODPP and the Sexual Assault and Family Violence Unit.380 He further noted that this included extending funds that were previously given to the ODPP but were not ongoing.381

The Tasmanian Government could consider whether to further support the pre-charging advice service and to extend the Sexual Assault and Family Violence Unit to cover Launceston (in addition to Hobart and Burnie).

1. Offences, evidence and procedure

In this section, we consider criminal offences and the laws of evidence and procedure that apply in child sexual abuse cases.

Over the past decade, Tasmania has made many welcome amendments to the law in this area, including changes to the Evidence Act, introducing provisions to make it easier for children to give evidence in sexual offence trials and piloting the Witness Intermediary Scheme.

The Tasmanian Government also introduced the Justice Miscellaneous (Royal Commission Amendments) Bill 2022, which commenced as the Justice Miscellaneous (Royal Commission Amendments) Act 2023 (‘Justice Miscellaneous (Royal Commissions)

Act’) on 20 April 2023. The Act made other changes including new child sexual abuse offences and introducing model provisions developed by the Uniform Evidence Law jurisdictions to address barriers to the admissibility of tendency and coincidence evidence.382

We also note that the Tasmanian Government is examining bail laws. We encourage the Department of Justice to consider the views and experiences of victim-survivors of institutional child sexual abuse as part of that review.383 For example, Keelie McMahon, a victim-survivor of child sexual abuse perpetrated by James Griffin (refer to Chapter 14), told us how she felt when Mr Griffin was granted bail:

Jim lived in the same suburb as me. Prior to him being charged we would go to the same shopping centre and I would frequently run into him there. After Jim was bailed I became really anxious and very rarely left my house because I was fearful of running into him. My mum told me he wasn’t at his house anymore but I still had the anxiety of knowing he was out there somewhere.384

This section focuses on the areas in which we would like to see more improvements to criminal offences, rules of evidence and court procedures. We then consider whether improvements can be made to ensure:

• criminal offences cover the range of offending behaviour that can occur in child sexual abuse cases and also have a preventive role in condemning and deterring such behaviour
• adult victim-survivors of child sexual abuse offences are extended the same protective measures that exist for children to minimise the traumatic impacts of a trial
• audiovisual recordings of evidence given by witnesses in child sexual abuse offence cases are of high quality
• relevant evidence in child sexual abuse offence cases is admissible
• juries understand the dynamics of child sexual abuse so they can effectively assess evidence in trials
• information is available for judges and the legal profession on the nature of child sexual abuse and trauma-informed court practice
• judges can rule on the admissibility of evidence before a jury is sworn in and before the trial starts to allow trials to progress with minimal procedural disruption.

1. Offences

This section describes the offences that may apply to perpetrators who commit child sexual abuse in institutional settings. It also refers to offences applicable to those who do not act to prevent child sexual abuse from occurring and recommends some changes. In the period since our Commission of Inquiry has been operating, there have been several changes to these offences, which are noted below.

In Tasmania, a person who sexually abuses a child, permits the sexual abuse of a child or is in a position of authority and fails to protect a child from sexual abuse can be charged with various indictable offences. These offences are dealt with in the Supreme Court and include:385

• rape386
• indecent assault387
• penetrative sexual abuse of a child or young person388
• penetrative sexual abuse of a child or young person by a person in a position of authority389
• person permitting penetrative sexual abuse of a child or young person on a premises390
• persistent sexual abuse of a child or young person391
• doing an indecent act with or directed at a child or young person392
• procuring a child or young person to have unlawful sexual intercourse with another person or to commit an indecent act with another person393
• communicating with a child or young person to induce them to engage in an unlawful sexual act (‘grooming’)394
• communicating with any person with the intention of exposing a child or young person to indecent material without legitimate reason395
• failure by a person in authority to protect a child from a sexual offence.396

There are also various indictable offences relating to producing, using, possessing or accessing child exploitation material.397

There is no time limit (limitation period) for prosecuting indictable offences. An accused person can be prosecuted, at least in theory, for offences that are alleged to have occurred many years before. However, in practice, the ODPP could advise the police that an alleged perpetrator should not be charged because the available evidence means there is not a reasonable prospect of conviction.398

Until recently, there were time limits on prosecuting summary offences.399 A time limit applied to assault with indecent intent, which may involve child sexual abuse, and a person could not be charged with the offence beyond 12 months after it was alleged to have occurred.400

The enactment of the Justice Miscellaneous (Royal Commission Amendments) Act removed this limitation period for assault with indecent intent.401 The amendment is retrospective to enable historical offences to be pursued.402 The Act also removed the two-year limitation period that applied to the offences of making, reproducing or procuring a child to be involved in making child exploitation material under the Classification (Publications, Films and Computer Games) Enforcement Act.403 We support these recent reforms.

1. Persistent sexual abuse offence

An accused person is entitled to a fair trial, which includes knowing the details of the case against them. Normally, when a person is charged with an offence, the prosecution must specify when the offence is alleged to have occurred. This enables the accused person to properly defend themselves against accusations of child sexual offences.

However, it is often difficult for victim-survivors of child sexual abuse to give details of the offending against them because:

• young children may not have a good understanding of dates and times
• delays in reporting may cause memories to fade
• the abuse may have occurred repeatedly and in similar circumstances, so the victim-survivor cannot describe specific occasions.404

To overcome this difficulty, Tasmania introduced an offence in 1994 of ‘maintaining a sexual relationship with a young person’, which applies where the accused person is alleged to have committed at least three separate unlawful acts.405 It is not necessary to prove the date on which any of the unlawful sexual acts were committed, nor the exact circumstances in which they were committed.406

The language of the offence, as originally drafted, misleadingly suggested that the child and abuser had a relationship, rather than indicating that the child had been subjected to continuing abuse. Although the National Royal Commission recognised this problem, it endorsed the language of ‘sexual relationship’ because it was used in similar Queensland legislation, which had previously operated successfully.407

Some states have since renamed the offence ‘persistent sexual abuse’.408 This occurred in Tasmania in 2020.409 However, while the name of the offence has changed, the language of ‘maintaining a sexual relationship’ is still used within the section.410 We consider that the provision should be redrafted to no longer use this terminology. This change will not alter how the section operates, but it will have the important effect of acknowledging that sexual interaction between children and adults is inherently abusive and non-consensual and should never be condoned. We note the efforts of the Grace Tame Foundation, through its ‘Harmony Campaign’, to advocate for removing this language, which the Foundation describes as giving licence ‘to characterise abuse as romance’.411 This forms part of a broader campaign to strengthen and harmonise child sexual abuse offences across states and territories.412 Victim-survivor Leah Sallese also agreed that the language of a ‘relationship’ is problematic:

I think this language needs to change because it suggests that the victim-survivor shoulders the blame. We’re already shaming and blaming ourselves, we don’t need a description such as this adding to our trauma.413

The rewording of the provision to remove reference to ‘maintaining a sexual relationship’ will not change the substance of the law.

Tasmania Police will generally seek advice from the ODPP before charging an accused person with sexual offences in cases where there may be a question about the appropriateness of the charges or the strength of the evidence.414 As discussed, this aims to ensure the charges laid are the most appropriate and to avoid charges being dropped or changed. Tasmania Police requires authorisation from the DPP to lay charges for the offence of persistent sexual abuse of a child or young person under section 125A of the Criminal Code Act.

1. Position of authority offence

As we discuss in Chapter 3, children in schools, out of home care, youth detention and hospitals are at risk of abuse from people who are employed by or otherwise associated with the institution. Staff, volunteers or carers in these organisations are often well placed to groom and abuse young people because of their power and close contact with them, as well as the trust others place in them.

The National Royal Commission recommended that all state and territory governments introduce offences that punish people in a ‘position of authority’ who sexually abuse children.415 Most states and territories have introduced offences for misusing authority over children and young people to sexually abuse them.416

Child sexual abuse offences generally apply to sexual contact with children who are under the age at which they can consent to sexual contact with an adult. One of the purposes of a position of authority offence is to capture circumstances where the child is above the age of consent (17 in Tasmania) and the alleged offender is in a position of authority over them. Position of authority offences aim to cover a gap in existing laws, criminalising sexual conduct between a child over the age of consent and a person in a position of authority or care.417

Since our Inquiry began, Tasmania has enacted legislation prohibiting penetrative sexual abuse of a child or young person by a person in a position of authority over them through the enactment of the Justice Miscellaneous (Royal Commission Amendments) Act on 20 April 2023.418 However, the offence only covers penetrative sexual acts.419 It does not capture perpetrators in a position of authority who engage in acts of grooming or sexual touching before a child has turned 18. We heard of cases where the abuser deferred penetration until after the child turned 18. In our view, section 124A also needs to cover non-penetrative sexual acts committed by a person in a position of authority, as is the case in several other states.420 We have recommended this change below.

An important feature of the offence is that it provides a non-exhaustive list of people in a position of authority. This list includes:

• a teacher if the child is a pupil of the teacher or is a pupil where the teacher works
• a parent (which is defined to include a stepparent or a foster parent)
• a person who provides religious, sporting, musical or other instruction to the child
• a religious or spiritual leader in a religious or spiritual group attended by the child
• a health professional or social worker providing professional services to the child
• a person who has the care of a child with a cognitive impairment
• a person employed or providing services in a prison or a youth detention centre
• a person who provides childcare or a childcare service
• an employer of the child or other person in a position of authority over a child in relation to the child’s employment (or voluntary work).421

We are pleased that this offence has been introduced and welcome its broad application to a range of institutional settings including schools, out of home care, youth detention centres and hospitals.

One question that can arise in applying the position of authority offence is how it applies to a case where a child interacted with the alleged offender while there was a relationship of authority between them, but the sexual acts did not occur until after that relationship of authority ended. For example, a child could be groomed by a teacher in their high school who does not initiate sexual contact until the child transfers to college in Year 11. In some circumstances, this offence could apply where the position of authority has ceased by the time the sexual act occurs if a connection has been maintained between the child and the person in the position of care, supervision or authority. For example, in Lydgate (a pseudonym) v The Queen the Victorian Court of Appeal held that evidence of sexualised conversations and messages between the principal of a school and a student were admissible evidence to prove that the principal was guilty of the similar Victorian offence, even though the sexual acts did not occur until after the school board had suspended the principal and he had resigned from his position.422

While we welcome the offence of penetrative sexual abuse of a child or young person by a person in a position of authority in Tasmania, we recommend broadening the offence to cover all forms of sexual contact (not just sexual penetration), as recommended by the National Royal Commission.423

1. ‘Failure to protect’ offence

The National Royal Commission recommended introducing a new offence of failure to protect a child in a relevant institution from a substantial risk of sexual abuse by an adult associated with the institution.424 As with failure to report offences, it is designed to protect children from abuse in institutional settings.

The National Royal Commission recommended that the offence apply where:

• an adult knows of a substantial risk that another adult associated with the institution will commit a sexual offence against
  • a child under 16
  • a child aged 16 or 17 years if the person associated with the institution is in a position of authority in relation to that child
• the person has the power or responsibility to reduce or remove the risk
• the person negligently fails to remove or reduce the risk.425

The National Royal Commission contemplated that relevant institutions would be defined to include institutions that run facilities for or provide services to children in circumstances where the children are in the care, supervision or control of the institution. Foster care and kinship services would be included, but individual foster carers and kinship carers would not.426

The Australian Capital Territory, South Australia and Victoria have enacted a failure to protect offence in broadly similar terms to the offence recommended by the National Royal Commission.427 Unlike the National Royal Commission recommendation, the South Australian offence also applies to a provider of out of home care who knows of a substantial risk that another person providing out of home care will abuse the child.

In Tasmania, the Justice Miscellaneous (Royal Commission Amendments) Act introduced into the Criminal Code Act the offence of failure by a person in authority to protect a child from a sexual offence.428 The offence is broadly consistent with the

recommendation of the National Royal Commission set out above. We consider that this offence could have an important symbolic and educative effect, as well as being a powerful tool for prosecutions. We welcome its introduction.

We note that the offence, as currently drafted, could potentially apply to a person who is under the age of 18. In contrast, the National Royal Commission considered that the offence should only be able to be committed by adults in the institution and not by children who are in leadership positions.429 Like the National Royal Commission, we do not consider the offence of failure to protect should apply to children.

Recommendation 16.9

The Tasmanian Government should introduce legislation to amend the following provisions in the Criminal Code Act 1924:

1. section 125A to remove all language referring to ‘maintaining a sexual relationship with a young person’ and replace it with words referring to the ‘persistent sexual abuse of a child or young person’
2. section 124A (the position of authority offence) to cover indecent acts with or directed at a child or young person under the age of 18 by a person in a position of authority in relation to that child or young person. The offence should
   1. not apply where the person accused of the offending is under the age of 18 at the time of the offence
   2. qualify as an unlawful sexual act for the purposes of the offence of ‘persistent sexual abuse of a child or young person’ under section 125A of the Criminal Code Act 1924
3. section 125E (the offence of failure by a person in authority to protect a child from a sexual offence) to ensure the offence does not apply to a person who was under the age of 18 at the time of the offence.

1. Supporting victim-survivors of child sexual abuse to give evidence

In the past, complainants and other witnesses in sexual offence cases, including children, had to give oral evidence in a courtroom in the presence of the accused person and a judge and jury, or before a magistrate.

During hearings and sessions with a Commissioner, some people who had experienced institutional child sexual abuse told us how stressful it was to be required to give evidence describing traumatic details about what had happened to them, and to be cross-examined about the circumstances in which the alleged offence occurred. Fear of having to give evidence and being cross-examined may discourage victim-survivors from reporting offences and inhibit the capacity of the criminal justice system to hold abusers accountable for their actions.

One anonymous submitter described giving evidence when she was a child, as a witness to the sexual abuse of her friend:

The cross-examination of me as a witness took half a day. The perpetrator’s defence lawyer tried to confuse, intimidate, undermine, frustrate, trap, persuade, humiliate and degrade me. For example, he tried to make me make sexual noises in front of a room full of strangers to prove that I knew what sex sounded like.430

Ms Munting described her experience of being cross-examined as an adult:

That was a harrowing and mortifying experience. I felt victim-blamed by the defence lawyer. [The accused] sat metres away from me, making dismissive noises and gestures while I was being questioned by the Crown and the defence.431

Judith Cashmore AO, Professor of Socio-Legal Research and Policy, Sydney Law School, University of Sydney, said that even ‘gentle’ questioning could be unsettling for a witness giving evidence.432

Most Australian jurisdictions have introduced laws to prevent harassing and offensive cross-examination. Under Tasmania’s Evidence Act, the court must prevent a question being put in cross-examination in certain circumstances, including if the court believes the question is misleading or confusing, unduly annoying, harassing, intimidating, offensive or repetitive.433

Research on the effect of such provisions has shown that judges and magistrates take a variety of approaches in deciding whether counsel should be permitted to put a particular question in cross-examination.434 Professor Cashmore told us:

In my experience, effective cross-examination designed to discredit the child’s evidence is rarely aggressive and may not be seen by those familiar and comfortable with the court process as oppressive.435

We are not aware of any research on the practices of Tasmanian judges and magistrates in deciding whether questions should be disallowed.

We make recommendations to assist courts to best exercise their powers in appropriate circumstances in Section 5.5.

Although controls on cross-examination can assist complainants and other witnesses to give evidence in child sexual abuse cases, adult victim-survivors of child sexual abuse spoke of finding court processes very difficult.436 For children, court processes can be even more confusing, frightening and traumatic than for adults.

In this section, we discuss laws and processes aimed at making it easier for children (and in some cases adults) to give evidence. These include:

• the recent Witness Intermediary Scheme pilot
• special measures intended to make it easier for child witnesses (and, in some circumstances, adult victim-survivors of child sexual abuse) to give evidence
• improving the quality of audiovisual recordings used in trials.

1. Witness intermediaries

The Tasmanian Government piloted a statewide Witness Intermediary Scheme to help children give their best evidence as witnesses in the criminal justice system.437 The scheme started on 1 March 2021, with 21 (now 28) witness intermediaries serving all Tasmanian regions.438

The scheme was introduced in response to recommendations of the National Royal Commission and the work of the Tasmanian Law Reform Institute in its 2018 report Facilitating Equal Access to Justice: An Intermediary/Communication Scheme for Tasmania? 439

The Witness Intermediary Scheme makes witness intermediaries available to all children who are victims or witnesses in court proceedings relating to sexual offence and homicide matters, and to adults in such proceedings who have extra communication needs.440 Although this is not covered by the legislation, Tasmania Police may also use witness intermediaries when investigating crimes.441

The role of intermediaries in court is to assist the judge and any lawyer to communicate with the witness and ‘perform any other function that a judge in a specified proceeding considers is in the interests of justice’.442

A judge may order that an intermediary prepares an expert assessment report if a child is a witness or if the judge or a lawyer identifies an adult as having extra communication needs.443 The assessment report provides recommendations to the judge and the lawyers appearing in court on adjustments that should be made to aid the witness’ communication with the court.

If the judge orders that a witness intermediary can be used, a ground rules hearing will be held before the trial. At this hearing, the judge can make directions dealing with matters such as how the witness is to be questioned and for how long, when the questions are to be provided to the witness intermediary, and the use of any models, plans, body maps or other aids to help communicate a question or answer.444

In this way, the judiciary and legal profession can be educated and informed about the communication needs of an individual child witness and, as intermediaries come to be used more often, the general needs of child witnesses. Professor Cashmore described witness intermediary schemes as having particular ‘educative value for lawyers, judges and others involved in the process’.445

We note that the Tasmanian Law Reform Institute’s report recommended that the scheme be used for police interviews as well as for the pre-trial and trial stages of the criminal justice process.446 The Department of Justice funds intermediaries to assist police in communicating with vulnerable witnesses. Ginna Webster, Secretary, Department of Justice, advised us that witness intermediaries may not be available to meet every request for assistance from Tasmania Police and that this will be adjudicated by the Department of Justice Intermediary Liaison Team.447

Although the Witness Intermediary Scheme pilot has only been running since 1 March 2021, the evidence we heard and the recent evaluation we refer to below suggest it is operating effectively.448

Commissioner Hine told us that, from the examples he has seen, the Witness Intermediary Scheme pilot is working well.449 He noted that the way witness intermediaries assist in interviewing children provides a good opportunity to get the best evidence from a victim-survivor.450

The use of witness intermediaries can also help build the skills and understanding of police in interviewing children and vulnerable witnesses.

According to information provided to us by Secretary Webster as of 12 May 2022 and later updated:

• Twenty-seven (now 28) witness intermediaries had received specialist training and been appointed to the intermediaries panel.451
• Intermediaries had assisted 501 vulnerable witnesses by identifying their needs and providing advice on special measures to assist police, lawyers and the courts in Tasmania.452
• Police made the largest number of referrals to witness intermediaries (22 adults and 412 children). Of these, 343 referrals related to sexual abuse. A small number of intermediaries were used in family violence cases where the witness had a serious communication need.453
• In matters going to court, the Magistrates Court referred two adults and 24 children to intermediaries. The Supreme Court referred 12 adults and 26 children.454

Secretary Webster stated that the number of referrals had significantly exceeded the Department of Justice’s expectations and that the Department had received ‘resoundingly positive feedback’ from judicial officers, lawyers and police officers.455

We did not hear directly from anyone who had been assisted by an intermediary in Tasmania, either when they were interviewed by police, communicated with a prosecutor or gave evidence at trial. However, we note that our own investigator was greatly assisted by witness intermediaries when interviewing some vulnerable victim-survivors.

On 30 May 2023, the Honourable Elise Archer MP, Attorney-General and Minister for Justice, provided an update in Parliament on the Witness Intermediary Scheme pilot. The Attorney-General said that, since the scheme began on 1 March 2021, witness intermediaries had assisted witnesses on more than 800 occasions by facilitating effective communication between children and vulnerable witnesses, police and the courts.456

The Attorney-General indicated that the Department of Justice had commissioned an independent process evaluation to ‘analyse the data and conduct anonymous surveys and interviews with stakeholders’.457 She said feedback from the evaluation had been ‘overwhelmingly positive, with almost all stakeholders agreeing that the Witness Intermediary Scheme pilot is an important and necessary program promoting the interests of justice in criminal trials’.458

The key findings of the process evaluation were:

• There is a high level of support for the purpose of the [Witness Intermediary Scheme Pilot] among evaluation participants and its potential to contribute positively to criminal justice processes in Tasmania.
• Most [Witness Intermediary Scheme Pilot] activity involved child witnesses, with far fewer cases involving adults with communication needs.
• [Witness intermediaries] are generally considered essential for child witnesses. Stakeholders are divided on the need to involve witness intermediaries when interviewing/questioning teenagers with good communication capabilities, however the best way to determine this eligibility is unclear.
• In practice, the role and functions of [witness intermediaries] in the context of the role of other stakeholders (including police, Witness Assistance Officers, lawyers, prosecutors and judicial officers) requires further clarity and adherence.
• Stakeholders were largely satisfied with referral and matching processes.
• The expertise of [witness intermediaries] is valued, however there are some stakeholders who believe that the justice system already adequately caters to meeting the communication needs of vulnerable witnesses.
• Further stakeholder engagement and marketing of [Witness Intermediary Scheme Pilot] among stakeholders is required to clarify the unique role and functions of witness intermediaries and how all stakeholders can collaborate most effectively around vulnerable witnesses.
• The marrying of health and legal expertise in the criminal justice system has resulted in both positive and challenging experiences for stakeholders and requires further refinement in relation to communication assessments, recommendations, reports and court attendance.
• Training of [witness intermediaries] appears to be effective, however additional confidence building for working in court settings may be useful.
• Witness intermediaries are eager for structured peer support, mentoring and professional supervision.
• There are some concerns related to the administration of the [Witness Intermediary Pilot Scheme] covering areas of remuneration and working conditions, time management, opportunities for [witness intermediaries] and feedback mechanisms.
• There is widespread support for considering the use of witness intermediaries for other vulnerable groups.459

The use of witness intermediaries has also been evaluated positively in New South Wales.

The Attorney-General said that the findings and recommendations from the process evaluation are being considered and that the Department of Justice would implement them.460

The Justice Miscellaneous (Royal Commission Amendments) Act also made procedural amendments to the Witness Intermediary Scheme.461

Using intermediaries in child sexual abuse offence cases in Tasmania is an important measure. Although witness assistance officers can help children and vulnerable adult witnesses to some extent, communication difficulties may not be immediately recognisable or may be regarded as insurmountable barriers to prosecution. Prosecutors may decide not to proceed because a child witness has difficulty communicating what happened to them. The Witness Intermediary Scheme may allow some cases to proceed that previously would not have, as well as increasing the possibility of police and prosecutors getting the best evidence from witnesses with communication difficulties. We also consider that the Witness Intermediary Scheme pilot can help build the skills and understanding of police in interviewing children and vulnerable witnesses.

At present, the Witness Intermediary Scheme does not apply to a defendant in a prosecution for a sexual offence.462 The Tasmania Law Reform Institute recommended that the scheme apply to all people with extra communication needs who are involved in the criminal justice system, whether as witnesses, victims of crime, suspects or accused persons.463 Tasmania Legal Aid also supported extending the scheme to accused persons who are children or whose difficulties in communication mean they need help in engaging in proceedings.464 We agree with that view and recommend accordingly. We believe there would also be advantages to amending the legislation to explicitly provide for use of witness intermediaries by police when interviewing children and young people. We also consider there may be benefits to using the scheme for vulnerable adult witnesses, including adult survivors of child sexual abuse, on a routine basis. This should be considered in the review being conducted by the Department of Justice following the evaluation of the pilot scheme.

Recommendation 16.10

1. The Tasmanian Government should extend the Witness Intermediary Scheme to include children who are under investigation for, or who have been charged with, sexual offences, and fund it to do so.
2. The Tasmanian Government should consider whether legislation should be enacted requiring police to use witness intermediaries in police interviews of children and young people and adults with communication needs (including defendants), relating to sexual offences.

1. Special measures

Children in child sexual abuse cases are a special category of witness. Most Australian jurisdictions have legislation to reduce the stress on child witnesses in child sexual abuse cases by providing special measures for how they give evidence. Some of these measures also apply to adult complainants in sexual offence cases.465 These measures aim to minimise the potential for distress and retraumatisation in giving evidence.

In 2019, the Tasmanian Government changed the Evidence (Children and Special Witnesses) Act to provide a range of special measures for child witnesses. These provisions can apply to adult witnesses in the circumstances described below. The Act’s special support provisions include:

• Use of special hearings to pre-record evidence. A court can make an order for a special hearing after hearing an application from the prosecution.466 In a special hearing, the child gives evidence before the jury is empanelled and then does not need to attend the trial.
• Provision for giving of evidence by audiovisual link if facilities are available, unless otherwise ordered.467 This means the child is not in the courtroom and is not exposed to the accused person.
• A prior statement, such as an audiovisual police interview, may be admitted into evidence, provided the judge makes an order.468
• A child is entitled to have a support person near them. The judge must approve the choice of support person.469
• A child witness’ evidence at trial is automatically recorded. If there is a retrial it can be used again if the judge orders that this occurs.470

Under the Evidence (Children and Special Witnesses) Act, adult victim-survivors of child sexual abuse who are subject of a witness intermediary order, because they have been assessed as having a communication need, are also entitled to special support.471 The same special measures that apply to child witnesses in sexual offence proceedings also apply to these adult witnesses. They can have an approved support person present, and a prior statement, such as an audiovisual interview, may be admitted into evidence. Evidence is given by audiovisual link unless otherwise ordered.472

There are also some other special measures for adult victim-survivors of child sexual abuse (an ‘affected person’) who are not the subject of a witness intermediary order.473 A judge can make an order for a special hearing to pre-record the evidence if the judge considers this is in the interests of justice and the other party consents.474 A judge can also make such orders after hearing an application for a special hearing, including orders for a support person and giving evidence by audiovisual link at the special hearing (which means the victim-survivor does not need to be in court).475 Even if there is no special hearing, the evidence of an adult victim-survivor of child sexual abuse will be automatically audiovisually recorded at trial, and this recording may be used as evidence in a future trial.476

If any further orders are required to assist a witness, a judge can make an order declaring that person to be a ‘special witness’ if satisfied that:

1. by reason of intellectual, mental or physical disability, the person is, or is likely to be, unable to give evidence satisfactorily in the ordinary manner; or
2. by reason of age, cultural background, relationship to any party to the proceeding, the nature of the subject matter of the evidence or any other factor the court considers relevant, the person is likely –
   1. to suffer severe emotional trauma; or
   2. to be so intimidated or distressed as to be unable to give evidence or to give evidence satisfactorily.477

The DPP told us that pre-recording the entire evidence of children and other special witnesses (in a special hearing) has resulted in positive outcomes, such as:

• lessening stress on the witness, in that the witness can come at an appointed time and have their evidence heard
• creating a more streamlined process than a trial and providing the ability to edit the evidence played to the jury. This allows children and special witnesses to be ‘eased into’ the proceedings in a less formal way and may enable them to take more frequent breaks
• increasing the likelihood that judges will intervene and control questioning.478

The DPP stated that these special measures are routinely used in child sexual abuse trials.479

The DPP also informed us that, on some occasions, this process has resulted in an earlier plea of guilty because several people have entered pleas shortly after the pre-recording.480

Professor Cashmore agrees that measures of this kind ease the prosecution process for children. She said these measures:

… are valuable measures that ease child witnesses’ experience of giving evidence in ways that do not impugn the defendant’s right to a fair trial. It is also my observation that these measures, and particularly witness intermediaries, may have some educative value for lawyers, judges and others involved in the process. This understanding promotes and improves the adoption of a child-sensitive approach by all stakeholders in the prosecutorial process.481

For a witness under 18 years of age or a victim-survivor of an alleged sexual assault, the DPP Guidelines state that the prosecutor must consider whether the special measures in the Evidence (Children and Special Witnesses) Act apply. 482 If they do, the prosecutor should advise the witness of their options and consider, especially with a child witness, having their evidence pre-recorded.483

We heard how daunting the court process can be for adult victim-survivors because it may mean reliving traumatic experiences that occurred when they were children. As Ms Sallese told us:

The lead-up to the court hearing was quite harrowing for me. I had buried it all for 24 years, and then I was suddenly experiencing all of the things that I should probably have experienced at the time, again in my forties.484

Professor Cashmore said there should be an opportunity for adult victim-survivors to have allowances when giving evidence:

… I think there needs to be the opportunity, a window there for those people to be protected in the same way with special measures so that they can give their evidence in a fair way. If you’re under immense stress you don’t give your best evidence.485

We consider that adult victim-survivors of child sexual abuse should have the same protections that are available to child complainants. Often, adult victim-survivors will have suffered significant trauma over many years. Tiffany Skeggs, a victim-survivor of child sexual abuse, told us that the need to recount events each time she spoke with someone different, including the police and lawyers, was exhausting and traumatic.486

Making it easier for adult victim-survivors of child sexual abuse to give evidence by using special measures recognises that trauma. The protections available to child witnesses should automatically apply to all complainants in cases involving child sexual abuse, regardless of their age at the time of giving evidence. The DPP told us he thought it would be beneficial to have a presumption in favour of admitting prior audiovisual statements (from police interviews) and having evidence at a special hearing given by audiovisual link for adult victim-survivors of child sexual abuse (not just for child witnesses).487

The DPP considered that introducing a non-exhaustive list of special measures that can be made during a trial, such as the use of a screen between the victim-survivor and the accused person when the victim-survivor gives evidence in court, should be included in the Evidence (Children and Special Witnesses) Act.488 We agree it would be useful for the court to direct the use of a screen in cases where the witness wants to give evidence in court.

The Justice Miscellaneous (Royal Commission Amendments) Act made changes to the special measures provisions in the Evidence (Children and Special Witnesses) Act by extending:

• the ability to admit audiovisual recordings of police interviews as all, or part of, the evidence-in-chief of adult victims or special witnesses in sexual offence or family violence proceedings489
• the use of pre-recording of audiovisual evidence to any other witness where it is in the interests of justice to conduct the pre-recording, and the parties agree.490

We support these changes.

Finally, in our view, the special measures in the Evidence (Children and Special Witnesses) Act are unnecessarily complex, poorly drafted and extremely difficult to understand. The DPP shares this view, telling us that the Act is:

… somewhat clunky and difficult to follow. It is particularly confusing that there are definitions for affected child, affected person, prescribed proceedings, prescribed witnesses, special witnesses, specified offence and specified proceeding.491

These provisions should be redrafted so the measures that apply to children, adult victim-survivors of child sexual abuse and people who are using a witness intermediary are much clearer. The special measures provisions could be simplified and rationalised as much as possible at the same time as drafting the amendments we recommend to the special measures.

Recommendation 16.11

1. The Tasmanian Government should introduce legislation to amend the Evidence (Children and Special Witnesses) Act 2001 to simplify the legislation to clarify when special measures are available to adults who are complainants in trials relating to child sexual abuse and allow them to:
   1. have a support person present when they give evidence in court
   2. give their evidence at a special hearing before the trial unless the judge considers that this would be contrary to the interests of justice, regardless of whether the accused consents
   3. be shielded from the view of the accused person by a screen or partition if they choose to give evidence in court.
2. The Tasmanian Government should ensure courts, public defence counsel (such as Tasmania Legal Aid) and the Office of the Director of Public Prosecutions are appropriately funded to carry out this recommendation.

1. Quality of audiovisual recordings

We have discussed the need for audiovisual recording facilities in all locations where specialist police take statements from victim-survivors of child sexual abuse. We also heard about the need for modern and consistent statewide audiovisual recording facilities in the Supreme and Magistrates courts.492 These facilities support police interview recordings being used as victim-survivors, evidence at trial. They also support victim-survivor recordings being used as evidence in a special hearing at which the victim-survivor will be cross-examined. These special hearing recordings are played to the jury in the trial, avoiding the need for the victim-survivor to attend the trial to give evidence in person. If there is a retrial, the same recording can be played to the new jury.

The DPP stated that the audiovisual recording facilities in the Supreme and Magistrates courts are poor, and that the quality of recordings is far from desirable.493 The DPP further stated that:

The recordings often do not adequately capture the subtle emotions of a witness. We have instances where the recording has not worked and the witness has been required to participate in the pre-recording again. In one other matter a pre-recording included a portion where the witness listened to some telephone intercept material. In court it was evident that the material was highly distressing to the witness; however, on the recording the image of the ‘recording playing’ [audio only] was the predominant image with the image of the witness being in a small box.494

The DPP advised us that it is not uncommon for Supreme Court staff to have limited understanding of how the audiovisual facilities work.495 He noted that, apart from the standard of the system generally, this can further diminish the presentation of the recordings and the way these recordings are played in court.496

In our consultations, the ODPP also cited problems with the court’s technology and capability, which can result in complainants having to give evidence again. Image quality can be grainy, and it can be difficult for the jury to assess the witness and their credibility.497 Defence counsel told us that recordings of police interviews are generally of good quality but described video links into court as ‘notoriously bad’.498

The DPP suggested that issues with audiovisual recordings in court could be overcome by funding and installing new audiovisual recording facilities and training staff to operate these new facilities.499 We support that approach.

The Solicitor for the State informed us that the 2020–21 Tasmanian Budget allocated $1.8 million to upgrade audiovisual technologies across Tasmanian courts and the Tasmanian Prison Service, and that the project will be finished by the end of 2023.500 We welcome that assurance and emphasise the urgency of improving the equipment as soon as possible. We also consider that improving the equipment will be of limited use without the equipment operators receiving proper training.

Recommendation 16.12

The Tasmanian Government should:

1. update the audiovisual equipment available to the Supreme and Magistrates Courts
2. discuss with the Supreme and Magistrates Courts ongoing training for relevant staff on using audiovisual equipment.

1. Ensuring relevant evidence is admissible

1. Broadening the test for tendency and coincidence evidence

The unfortunate reality in our criminal justice system is that, in cases of child sexual abuse where the only evidence of the abuse is the victim-survivor’s evidence, it can be difficult for the prosecution to prove beyond reasonable doubt that the alleged offence occurred. Tendency and coincidence evidence (in the past often referred to as propensity or similar fact evidence) is evidence that attempts to show that:

• an accused person has a tendency to commit certain acts based on them having done it before, or
• it is likely that an accused person committed multiple offences based on the similarity of multiple allegations against them.

In the context of institutional child sexual abuse, an abuser may have committed offences against more than one child. In such cases, the laws of tendency and coincidence evidence apply to determine whether:

• evidence from other victim-survivors should be admitted in the trial, or
• whether a joint trial could be held to determine charges against an accused person made by multiple complainants.

In the past, the law was restrictive in its approach to allowing tendency or coincidence evidence. This has been distressing for victim-survivors who have felt that a jury was not getting the full picture of an accused person and the potential nature and breadth of their offending.

Professor Cashmore described the way such evidentiary rules can make it difficult for victim-survivors giving evidence:

But then we have a legal system that tends to split and dice those stories so you don’t get a whole narrative, a coherent narrative, about what happens; where you have separated trials and there are issues around tendency and coincidence evidence. All of it makes it very much harder for a complainant to tell a story in terms that is really the whole of the story. You’re asked to tell the truth, the whole truth and nothing but the truth, but telling the whole story can be really difficult, particularly if you’re not being questioned in a way that actually allows that whole story to emerge.501

Restrictions on tendency and coincidence evidence reflected a concern that a jury would give too much weight to the evidence, which may be unfairly prejudicial to the accused person.502 However, Jury Reasoning Research conducted for the National Royal Commission found no evidence of unfair prejudice to the accused person.503 The National Royal Commission recommended that the laws for tendency and coincidence evidence in prosecutions for child sexual abuse offences be reformed to allow for greater admissibility and cross-admissibility of tendency and coincidence evidence and to make it easier to try charges involving multiple complainants in a single trial.504

Legislative changes in recent years have broadened the admission of tendency and coincidence evidence.505 In 2017, Tasmania introduced a presumption for joint trials to take place where there are two or more charges for sexual offences joined in the same indictment.506

These legislative changes, together with recent decisions of the High Court of Australia, have considerably relaxed the earlier principles that restricted the admission of such evidence.507

The Justice Miscellaneous (Royal Commission Amendments) Act introduced further amendments to the Evidence Act, to broaden the test for the admission of tendency and coincidence evidence in criminal prosecutions involving child sexual offences.508 The Act introduced the model provisions developed by the Uniform Evidence Law jurisdictions, which have already been introduced in New South Wales.509 The provisions aim to address barriers to the admissibility of relevant evidence of an accused person’s tendency to perpetrate sexual violence against children.510

The test for the admission of tendency and coincidence evidence is whether the court thinks it has ‘significant probative value’.511 If the prosecutor seeks the admission of the evidence, its probative value must outweigh ‘the danger of unfair prejudice’ to the accused person.512 Section 97A(2) of the Evidence Act now provides that, where the accused is charged with a child sexual offence, it is presumed that certain categories of tendency evidence have a significant probative value. These include:

1. tendency evidence about the sexual interest that the defendant has or had in children (even if the defendant has not acted on the interest)
2. tendency evidence about the defendant acting on a sexual interest that the defendant has or had in children.

This applies whether the sexual interest or act relied upon relates to the complainant in the proceeding, or any other child or children generally.513

Under section 97A(4), the court has a discretion to decide that evidence falling within the provisions described above does not have significant probative value if it is satisfied that there are sufficient grounds to do so.

Section 97A(5) allows courts to consider certain matters, that they could not previously take into account, when deciding whether evidence can be admitted to show that the defendant had a tendency to offend sexually against children. For example, the court can now consider that evidence of the defendant having a sexual interest in children is ‘of significant probative value’ even if the child to whom the evidence relates is of a different age, gender or sex than the victim.514 The recent legislative changes have made it easier for the court to allow the jury to hear tendency and coincidence evidence.515

We are mindful that the changes made to the tendency and coincidence evidence provisions in the Evidence Act because of enacting the Justice Miscellaneous (Royal Commission Amendment) Act reflect an agreement between the Council of Attorneys-General (now the Standing Council of Attorneys-General).516 We consider there are advantages in clearly setting out this complex area of law in legislation and do not propose any changes to these provisions.

1. Admitting evidence from the Magistrates Court

During our Commission of Inquiry, we heard about restrictions in the way evidence from a case in the Magistrates Court can be used in any later case involving the same victim-survivor.

Ms Collins told us about her experience with the criminal justice system.517 The trial in her case did not proceed, and it appears that the charges were dismissed in the Magistrates Court in 2004, even though no evidence was presented to the Court and the Court did not decide whether sexual abuse had occurred.518

The DPP told us that it was not possible to reopen the case, even though there had been changes to the law since 2004 that would make it easier to prosecute the accused person today.519

There is no power for a matter to be reopened after charges have been dismissed in the Magistrates Court. The DPP informed us that a similar restriction applies in family violence offences but that this has been overcome by amending the Family Violence Act 2004 (‘Family Violence Act’).520

The DPP recommends inserting a new provision into the Criminal Code Act like the approach taken in family violence cases.521 Section 13B of the Family Violence Act provides that if:

1. a person is charged with a family violence offence (the first charge) in [the Magistrates Court] but is acquitted because the prosecution has informed the court that it will not be offering any evidence in support of the charge; and
2. the person is charged with another family violence offence (the second charge) [in any court]

[the earlier acquittal in the Magistrates Court does not prevent the court from hearing evidence of the first charge as evidence that the accused person had a tendency to commit certain acts based on the assertion that they have done it before].

We consider this a sensible approach that should be adopted for all sexual assault matters, including child sexual abuse matters.

Recommendation 16.13

The Tasmanian Government should introduce legislation to extend the principles of section 13B of the Family Violence Act 2004 to sexual assault matters, including child sexual abuse. This will ensure that where a person is acquitted in the Magistrates Court because the prosecution has informed the Court it will not be offering any evidence in support of the charge, the acquittal does not prevent admitting evidence of relationship, tendency or coincidence evidence in a later related matter.

1. Improving case management

In this section, we recommend a change to a procedure that would allow judges to make rulings on the admissibility of evidence before a jury is sworn in. This will reduce delays and improve case management.

1. Pre-trial rulings

Before a criminal trial occurs, a judge may make rulings (‘pre-trial rulings’) on procedural questions and legal arguments put by the prosecution or defence counsel, including arguments about the admissibility of certain evidence. This makes the trial process more efficient by sometimes making it unnecessary to suspend witness testimony during the trial while these legal arguments are considered.

Section 361A(1) of the Criminal Code Act provides that after a person has entered their plea, but before a jury is sworn in, among other things, the court may:

• determine any question of law or procedure that has arisen or is expected to arise in the trial3
• determine any question of fact that may lawfully be determined by a judge alone without a jury
• determine any other question that it considers necessary or convenient to determine to ensure the trial will be conducted fairly and expeditiously
• give such directions as it sees fit to resolve any issue or matter that it considers necessary or convenient to resolve before a jury is sworn.

Any admission, determination or direction made or given under section 361A(1) of the Criminal Code Act has the same status for the purposes of a new trial as if it had been made or given during the new trial.522

The DPP told us of limits in how this provision works in practice. Under the provision a judge can only make a ruling if the accused person has entered a plea. When an accused person enters a plea, the trial starts. The DPP stated that sometimes judges refuse to make rulings under the provision if they may not be the ultimate trial judge and that this can cause scheduling difficulties and delays.523 He pointed out that all judges sit in Hobart, Burnie and, on occasion, Launceston, noting:

If a pre-trial ruling is required for a matter listed in Burnie, and there is insufficient time for the trial proper to immediately follow the ruling, it may be a matter of months (perhaps over a year) before the judge who made the ruling is sitting in Burnie again. It would be beneficial to amend section 361A to avoid this situation.524

We understand there are now two Supreme Court judges who permanently sit in Launceston and Burnie (respectively), and that other judges travel on circuit to these courts. We also note it is up to the DPP to list trials in the Supreme Court. The DPP’s concern about section 361A(1) may now be less acute.

However, we consider it would be beneficial to expand the circumstances in which such rulings can be made. In Victoria, section 199 of the Criminal Procedure Act 2009 (Vic) allows pre-trial rulings to be made before an accused person has entered a plea.

Under section 204 of that Act:

An order or other decision made at a directions hearing or other pre-trial hearing by a judge who is not the trial judge is binding on the trial judge unless the trial judge considers that it would not be in the interests of justice for the order or other decision to be binding.

Under section 205(1) of the Act:

If a new trial is held, the court may treat any order or other decision made at a directions hearing or other pre-trial hearing held in connection with the earlier trial as if it had been made at a directions hearing or other pre-trial hearing held in connection with the new trial.525

We recommend that Tasmania’s Criminal Code Act be amended to provide that a judge can make a ruling before the accused person has entered a plea.

Recommendation 16.14

The Tasmanian Government should, in similar terms to sections 199, 204 and 205 of the Criminal Procedure Act 2009 (Vic), amend the Criminal Code Act 1924 (including section 361A) to:

1. allow pre-trial rulings or orders to be made before the accused person has entered a plea
2. provide that such pre-trial rulings or orders are binding on a trial judge, even where a different judge made the order, unless the trial judge considers that would not be in the interests of justice
3. provide that such pre-trial rulings or orders apply at a new trial unless this would be inconsistent with any order or decision made on an appeal or would not be in the interests of justice.

1. Assisting juries to assess the evidence of children

In a criminal trial, the jury must listen to all the evidence and decide which parts of the evidence should be accepted. The judge is responsible for directing the jury about the law and for ensuring the proceedings are conducted according to the law.

After witnesses have given their evidence and prosecution and defence counsel have made their closing submissions, the judge directs the jury about the elements of the offence and summarises the evidence. The judge also directs or warns the jury about how to consider certain matters. Various legal principles govern the jury directions that a judge must give.

The National Royal Commission recommended that each state and territory develops jury directions about children and the impact of child sexual abuse.526 Victoria has introduced legislation about jury directions that is designed to assist juries to assess a child’s evidence and to consider other questions relevant to the trial.527 We discuss the Victorian provisions in more detail below.

In this section, we discuss jury directions in the context of child sexual abuse offence cases and make recommendations for helping juries to assess the evidence of children.

1. Reliability of children’s evidence

Both the prosecution and defence can ask a judge to warn the jury that a witness’ evidence may be unreliable. Unless the judge considers there are good reasons for not doing so, the judge must:

• warn the jury that the evidence may be unreliable
• inform the jury of matters that may cause it to be unreliable
• warn the jury of the need for caution in determining whether or not to accept the evidence and the weight to be given to it.528

Evidence that could be considered unreliable includes that which may be affected by ‘age, ill health, whether physical or mental, injury or the like’.529

A warning cannot be based on the child’s age alone.530 But there may be aspects of the evidence of a child that could be thought to cast doubt on what they have said. In these circumstances the judge can, on their own initiative or on an application of the prosecution or defence, give a warning in the terms listed above.531

Failure to give such a warning may be a basis for an appeal against conviction. For that reason, judges may warn about the reliability of a child’s evidence out of an abundance of caution. Excessive use of warnings, combined with a commonly held (and incorrect) belief that children often lie about sexual matters, could influence some juries to disbelieve a child because of the way they have given their evidence. Adjunct Associate Professor Terese Henning told us:

Prosecution counsel and complainants are faced with generations of deeply embedded and persistent perceptions about sexual offences and prejudices around children’s credibility … so those complainants start off at a considerable disadvantage in addition to the difficulties of withstanding the rigours of the trial process itself.532

In Victoria, the Jury Directions Act 2015 (Vic) (‘Jury Directions Act (Vic)’) codifies the directions that judges must give in criminal trials. Like Tasmanian legislation, it provides for judicial warnings about matters that may affect the reliability of a child’s or other person’s evidence and specifies the way in which juries should be warned about factors affecting reliability. Unlike in Tasmania, Victoria also provides for juries to be given directions about the difficulties child witnesses often face in giving evidence in the same way that adults can, which may affect the way juries assess the reliability of a child’s evidence. Professor Cashmore described these difficulties in the following way:

A large body of evidence has established that children’s memory is reliable. Often, however, those questioning children do not ask questions in ways that optimise the reliability or accuracy of the child’s answer. Further, once a matter is in court, the child witness is potentially exposed to a range of stressors that make it more difficult to process information, answer questions and provide reliable evidence. These include the formality of the court, potentially facing the alleged abuser and cross-examination that is often confusing and developmentally inappropriate, designed to discredit the evidence of the witness.533

In Victoria, if a trial judge considers, before any evidence is given and after hearing submissions from the prosecution and defence, that the reliability or credibility of a child witness is likely to be an issue, section 44N of the Jury Directions Act (Vic) requires the judge to tell the jury that:

1. children can accurately remember and report past events; and
2. children are developing language and cognitive skills, and this may affect—
   1. whether children give a detailed, chronological or complete account; and
   2. how children understand and respond to the questions they are asked; and
3. experience shows that, depending on a child’s level of development, they—
   1. may have difficulty understanding certain language, whether because that language is complicated for children or complicated generally; and…
   2. may have difficulty understanding certain concepts, whether because those concepts are complicated for children or complicated generally; and…
   3. may not request the clarification of a question they do not understand; and
   4. may not clarify an answer they have given that has been misunderstood.534

Judges must give this direction to juries before any evidence is given and after hearing submissions from the prosecution and defence.

The Jury Directions Act (Vic) provides some examples of situations in which children may have problems in answering questions, including the use of ‘hypothetical, ambiguous, repetitive, multi-part or yes/no questions’, or questions involving the use of ‘passive voice, negatives and double negatives’.535

While we consider witness intermediaries are likely to play an important role in supporting child witnesses to give their best evidence, a provision like section 44N of the Jury Directions Act (Vic) could help juries to understand the difficulties that children face in giving evidence and the distinctive ways in which they may do so.

1. Children’s reactions to sexual abuse

Research into the reactions of children who have been sexually abused shows that victim-survivors respond in a variety of ways. Not all children who have been abused avoid the perpetrator; indeed, many of the witnesses we heard from continued to have some contact with their abuser after the abuse had stopped.

In our hearings, some victim-survivors told us that they continued to see the person who abused them for a long time after they were first abused because they did not understand they had been abused or had been groomed to believe that the abuser loved them or that they were in a ‘relationship’.536 Some victim-survivors had no choice but to continue seeing the abuser because of a family relationship or because the abuser held a role that they could not avoid (for example, as their teacher).537

Research also shows that sexual abuse disclosure typically occurs in stages.538 If the child’s first attempt to tell someone about their experience is not understood or acknowledged they may never go on to describe the extent of the abuse or they may do so many years later, often into adulthood. Michael Salter, Scientia Associate Professor of Criminology, School of Social Sciences, University of New South Wales, told us:

Disclosure of child sexual abuse should be understood as an ongoing process rather than a discrete event, characterised by diverse behavioural and psychological indicators of trauma, as well as delayed, conflicted and even unconvincing disclosures followed by retraction or recantation. During this process, children are hyper-sensitive to displays of scepticism or disbelief in the conduct and tone of the adults they are trying to connect with. They anticipate not being believed or being blamed for their abuse and are likely to withhold further information or recant their disclosure entirely if they detect blame or scepticism.539

The DPP told us he supports jury directions to the effect that it is not uncommon for a complainant to maintain ties with the accused person many years after the sexual abuse occurred.540

Because juries may not understand these features of institutional child sexual abuse, we consider it would be useful for them to receive a direction from the judge informing them of these matters.

1. Corroboration warnings

Previous inquiries have discussed the history of warnings issued by judges in relation to child witnesses and sexual abuse.541 In summary, historically, children who alleged they had been sexually abused were regarded as suspect witnesses, so the law required that their evidence be corroborated. Similar suspicions applied to adult victim-survivors of child sexual abuse. However, we know that abusers generally conceal their offending and that prosecutions for child sexual abuse offences often rest on word-against-word evidence.

Even after legislation abolished this formal corroboration requirement, judges presiding over sexual offence trials used to be required to warn juries that it could be ‘dangerous to convict’ based on the complainant’s evidence alone and/or that the evidence of complainants in sexual offence cases should be scrutinised with great care. The use of the words ‘dangerous to convict’ may well have been interpreted by some juries as a direction to find the accused person not guilty.

Judges also had to give jury directions based on myths and assumptions about the typical behaviour of people alleging they had been raped or sexually abused—for example, the false belief that sexual offence victim-survivors usually tell someone about the offence soon after it occurs, although research shows that this is rarely the case. The National Royal Commission recommended changes to jury directions or warnings.542 These changes were intended to encourage reporting of offences against children and address incorrect assumptions that members of the community (including the judiciary and legal profession) may hold about the behaviour of child victims of sexual abuse.543

In 2010, Tasmania enacted provisions that prohibited a trial judge from warning the jury:

• that children are unreliable witnesses
• that the evidence of children is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults
• about the unreliability of a particular child’s evidence solely because of their age
• in a criminal proceeding, of the danger of convicting on the uncorroborated evidence of a witness who is a child.544

The requirement that the evidence of all complainants in sexual offence trials be corroborated has also been removed. Adjunct Associate Professor Henning described these as ‘the most significant reforms’ in relation to children and sexual offences.545

Section 136 of the Criminal Code Act provides that:

• At the trial of a person accused of certain sexual offences, no rule of law or practice requires a judge to give a warning to the jury to the effect that it is unsafe to convict the person on the uncorroborated evidence of a person against whom the crime is alleged to have been committed.
• A judge shall not give a warning of this kind unless satisfied that the warning is justified in the circumstances.546

This provision means that the judge is not required to give such a warning, but it does not prohibit such a direction being given.

The DPP told us that some Tasmanian judges in sexual offence trials will give what is often referred to as a ‘Murray direction’ (derived from the case of R v Murray), which directs the jury that where there is only one witness asserting that a crime has been committed, the evidence of the complainant should be scrutinised with great care before a verdict of guilty is delivered.547 The DPP said that, on occasion, that direction is given even when there are other witnesses who give supporting evidence.548 He told us that this is done on the basis that if the jury rejected the evidence of other witnesses, the complainant’s evidence should be treated as if it were the evidence of only one witness.549

The DPP said that giving the Murray direction in these circumstances undermines the effect of section 136 of the Criminal Code Act, which, as explained above, removes the requirement to warn the jury about the dangers of conviction on the uncorroborated evidence of the complainant in sexual offence cases. This practice may make juries reluctant to convict in cases where the prosecution case depends solely on the complainant’s evidence.

The practice of issuing a Murray direction may undermine uncorroborated evidence from a victim-survivor. Robert Boost, a victim-survivor, described his experience reporting to Tasmania Police in 2020 as ‘fantastic’ until the DPP decided not to proceed based on the absence of corroborating evidence:

My bad experience with the criminal justice system really occurred when Tasmania Police approached the DPP to discuss laying charges on the perpetrator. Unfortunately, I heard from Tasmania Police that the DPP had formed the view that, while I was likely to be a reliable witness, there was insufficient corroborating evidence from other witnesses, and the matter did not meet the DPP’s threshold for proceeding to trial.550

In Ewen v R, the New South Wales Court of Appeal was critical of the practice of giving a Murray direction solely because the evidence of the complainant was uncorroborated. Justice Simpson commented that:

A ‘Murray direction’, based only on the absence of corroboration, is, in my opinion, tantamount to a direction that it would be dangerous to convict on the uncorroborated evidence of the complainant.551

The DPP supports adopting a provision along the lines of section 294AA of the Criminal Procedure Act 1986 (NSW), which limits the warnings that can be given in word-against-word cases to a further extent than the Tasmanian provisions.552 This provision prohibits the Murray direction from being given solely because the complainant’s evidence is uncorroborated.553 Instead, the DPP proposes that, when a Murray direction is given, the judge should have to warn the jury that it is the circumstances of the case generally, and not the complainant, that require the direction; and that it is not unusual in cases of sexual assault that the conduct is not witnessed.554

We agree that it is appropriate to limit the use of Murray directions where the complainant is still a child or is an adult who is giving evidence about childhood abuse. Legislation that does so should not prevent counsel from requesting that the judge draws the jury’s attention to features of the complainant’s evidence, other than the lack of corroboration, that may be relevant in determining whether the accused person can be found guilty beyond reasonable doubt.

1. The effect of delay

In the past, judges were also required to warn juries about the danger of convicting a person accused of a sexual offence when there was a delay in reporting the offence. We heard from victim-survivors of child sexual abuse who had not told anyone about the offending for many years after it had ceased. Their reasons for not doing so included:

• not recognising the experience(s) as abuse
• shame and embarrassment about having been abused
• not wanting their families to know they had been abused
• fear about what the abuser would do if they reported.

Mr Boost told us how he grappled with shame for many years after he was abused in the early 1990s:

I kept the perpetrator’s abuse to myself until 2014. I felt ashamed of what had happened. I blamed myself for what I saw at the time as a relationship with the perpetrator, not grooming or abuse.555

Victim-survivor Rachel (a pseudonym) also told us:

After bottling the child sexual abuse for almost two years, I broke down and finally came out with details about the sexual abuse I had suffered … It was really difficult for me to talk about what I had been holding back for years.556

Victim-survivor Azra Beach, who told us she was abused while in the out of home care system, explained that she had no understanding that what was happening was abuse:

[A fellow victim-survivor] and I didn’t tell anyone about what was going on. We had no-one to tell. For me, I also didn’t realise anything abnormal was happening. It was just the way that it was. This is what people do.557

Some victim-survivors were also afraid they would not be believed. Ms Skeggs told us: ‘When I made my report I was terrified of not being believed by the authorities. [James] Griffin was a well-respected and seemingly powerful member of the community’.558

In years gone by, warnings about delay may have made juries reluctant to convict people for offences that occurred many years previously.

The National Royal Commission recommended states and territories legislate that jury directions about delay and credibility were not required. It recommended such legislation provide that no direction or warning that delay affects the complainant’s credibility should be given, unless it was requested by the accused person and is warranted on the evidence; and that if a direction or warning is given, the judge should not use expressions such as ‘dangerous or unsafe to convict’ or ‘scrutinise with great care’.559

In her witness statement, Professor Cashmore referred to a research report that she and co-authors had prepared for the National Royal Commission titled The Impact of Delayed Reporting on the Prosecution and Outcomes of Child Sexual Abuse Cases.560 She summarised data on delayed reporting in New South Wales and South Australia. In these states, most reports were made within three months of the incident, but nearly one in four sexual assaults were reported more than five years after the offence, with some reports being made after 20 years.561 Men were more likely to delay their reporting, and they delayed reporting for longer than women. The longest delays occurred when the accused perpetrator was a person in a position of authority. In these cases, most reports were made at least 10 years after the incident.562

Professor Cashmore commented that this data showed that:

… there are relatively high instances of delayed reporting of child sexual abuse where that abuse occurs in institutional settings. These reports relate to historical child sexual abuse in some older-style residential institutions, as well as some more recent church-based and sporting organisations. Whether the very delayed reporting evident in these earlier cases will continue for more recent and current sexual abuse is uncertain, given the increased awareness and exposure of both sexual abuse and the associated cover-up to protect the institutions.563

Adjunct Associate Professor Henning described the way many of these repealed laws or practices, including warnings about delays, ‘played to stereotypes that juries have in relation to who is a “genuine victim”’.564 However, she noted that reform can only go some way to ameliorate this, with an example:

… in cases of historical sexual assault, there is obviously an absence of recent complaint. Defence counsel play on that and it doesn’t matter that the judge is mandated to instruct the jury that absence of recent complaint does not necessarily indicate the mendacity of the complainant, or fabrication of the offences. It’s just one of those misconceptions that are difficult to dislodge.565

The Criminal Code Act reflects the National Royal Commission’s recommendation to some extent. It provides that where the alleged victim does not make a complaint, or where the complaint comes a long time after the alleged offence, the judge shall:

• warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the crime was committed is false
• inform the jury that there may be good reasons why such a person may hesitate in making, or may refrain from making, a complaint.566

Victoria’s Jury Directions Act goes further than the Tasmanian provision. It provides that if, after hearing the submissions from the prosecution and defence, the trial judge considers that there is likely to be evidence of a delayed complaint, the judge must give the jury certain information before evidence of delay can be given. In these circumstances, the trial judge must inform the jury that:

• people may react differently to sexual offences and there is no typical, proper or normal response to a sexual offence
• some people may complain immediately to the first person they see, while others may not complain for some time, and others may never make a complaint
• delay in making a complaint about a sexual offence is common
• there may be good reasons why a person may not complain, or may delay complaining, about a sexual offence.567

The provision applies to trials regardless of whether the victim-survivor is an adult or a child.

We prefer the positive framing of this direction, which focuses on common practices, compared with the Tasmanian direction, which is framed in the negative. The DPP supports introducing a direction about the effects of sexual abuse on a child, including that it is known that children often do not complain for many years.568 We recommend that a provision similar to that in Victoria be adopted in Tasmania.

1. Timing of jury directions

Jury directions are usually given near the end of a trial as part of what is known as the judge’s charge to the jury.

The National Royal Commission noted considerable merit in allowing the trial judge to give a direction at any time before the close of evidence at the discretion of the judge and requiring some directions to be given at particular times in the trial, generally earlier than might otherwise occur.569

In its report Improving the Justice System Response to Sexual Offences, the Victorian Law Reform Commission noted that research suggests if jurors hear a jury direction early in the trial, they will have an informed position in their minds before they hear the complainant’s evidence and before they form any opinions based on misconceptions.570

The Victorian Law Reform Commission recommended jury directions be given before or during the evidence and that judges repeat them at any time in the trial, if either party requests, or if the judge considers there is evidence in the trial that requires the direction to be given.571 We consider this is sensible and recommend a similar approach be taken in Tasmania.

1. Non–case specific jury education

Myths and misconceptions about sexual offences, including child sexual abuse, have long affected the criminal justice system’s responses to child sexual abuse.572 As the National Royal Commission noted, these myths and misconceptions have influenced the law and the attitudes that jurors bring to their decision making.573

The National Royal Commission identified the following myths and misconceptions as being particularly prominent in child sexual abuse cases:

• women and children make up stories of sexual abuse
• a victim of sexual abuse will cry for help and attempt to escape the abuser
• a victim of sexual abuse will avoid the abuser
• sexual assault, including child sexual abuse, can be detected by a medical examination.574

Adjunct Associate Professor Henning told us that prosecutions of sexual offences are uniquely difficult. She indicated this is largely because of deeply held and persistent societal views about ‘genuine victims’, who they are and their behaviour, and the nature of consent.575

We heard evidence from Dr Tidmarsh from Whole Story Consulting that non-specific training for jurors, conducted before a trial starts, could minimise the impact of myths and misconceptions that defence counsel may want to use during trial.576

Dr Tidmarsh stated that:

… given what we know about how strongly juries struggle to move beyond their own psychological schema, their own understanding of sexual relationships, of sexual offending relationships, their own judgment, to leave jury members unprepared to meet the complexity and the nuance of these kinds of stories, I think it does them and the justice system a significant disservice, and that anything we can do, without prejudicing the fairness, the rights of the accused, to inform them of the background of these stories; what grooming is, for example, would be very beneficial and would certainly level the playing field.577

Dr Tidmarsh informed us that some models have used non-case specific educational sessions for jurors and potential jurors before trial. These sessions encourage defence counsel to use fewer myths and misconceptions than they otherwise would have.578

When we put this idea to Professor Cashmore at hearings, she agreed we should not assume jurors understand the dynamics of child sexual abuse. She added:

But for jurors coming in, it is a strange environment and these are difficult cases to determine, and the evidence … it’s not an equal playing field … So, I think having jurors who have a better understanding of what the dynamics and the context and the consequences, you know, why children behave in certain ways: they may never have had any experience, and hopefully they haven’t had any experience, of knowing a child who’s been sexually abused and understanding that. So, it makes sense to me to even the playing field a little.579

One witness in a child sexual abuse matter (who was herself a child at the time of trial) described her frustration at the fact that most female jurors were excluded through defence challenges, leaving mainly men around the same age or older than the abuser.580 She added:

The entire defence hinged on the prevailing attitude of ‘children lie about sexual abuse’. But how true is this underlying assumption? The literature shows that children rarely lie about child sexual abuse.

I wonder what these kinds of trials would look like if the jury (and the public) were made aware of this fact. What if decision-making in the justice system was informed by facts and statistics, just like medicine and science are, rather than being informed only by the attitudes of the average juror? Sounds radical, but it shouldn’t be.581

In New Zealand, the Sexual Violence Legislation Act 2021 (NZ) introduced a requirement for judges to direct juries as ‘necessary or desirable to address any relevant misconception relating to sexual cases’ with a non-exhaustive list of possible misconceptions relating to false allegations, victim blaming and rape myths.582 A New Zealand study on juror use of cultural misconceptions in sexual violence trials noted that such directions rely on sound judicial education and implementation by individual judges.583 The study noted that, if done poorly, directions may focus jurors on the misconceptions they set out to rectify and could make the situation worse.584

The New Zealand study also observed a growing interest in other forms of jury education; for example, information about cultural misconceptions could be sent out with jury summons, provided in writing or by video at the time of jury selection, or left in the jury room.585 However, as with other forms of juror education about misconceptions, the New Zealand study indicates there is relatively little knowledge about what works and to what extent awareness raising affects reasoning in real cases.586 We consider that any information given to jurors should be factual and focus on common practices in relation to child sexual abuse, rather than being negatively framed to overcome common myths.

The National Royal Commission reported mixed views about the benefits or otherwise of providing video or other material to juries, particularly about child sexual abuse. It considered that authorising trial judges to give directions about child witnesses and child sexual abuse is better than developing extra educational material to assist juries.587

Section 108C of the Tasmanian Evidence Act provides for juries to be educated about child development and child behaviour—for example, why their failure to complain or their failure to respond to sexual abuse in a particular way is normal. The ODPP told us that this provision is not often used but that it is a valuable provision.588 In our view, the ODPP should consider whether to use this section in child sexual abuse cases. We are aware that section 108C of the Evidence Act 1995 (NSW) has been used in New South Wales to admit opinion evidence to help understand the behaviours of child sexual abuse victim-survivors and common misconceptions about their behaviours and responses.589

Although we consider that providing non-case specific information to juries about common practices relating to child sexual abuse is not enough in itself to dispel myths and change attitudes, we consider such information could play an important role.

Recommendation 16.15

The Tasmanian Government should introduce legislation to:

1. require trial judges to explain to juries the difficulties child witnesses often face in giving evidence in court, and the distinctive ways in which they give evidence, in cases where the reliability or credibility of a child witness is likely to be in issue, in similar terms to section 44N of the Jury Directions Act 2015 (Vic)
2. provide that in jury trials of a person accused of a child sexual abuse offence, if a party so requests, the judge must, unless the judge considers there are good reasons for not doing so, direct the jury that
   1. children who have been subjected to child sexual abuse respond in a variety of ways and some children who have been abused do not avoid the alleged perpetrator
   2. disclosure of abuse may occur over time and not all on one occasion
3. prohibit, in similar terms to section 294AA of the Criminal Procedure Act 1986 (NSW), a judge in a trial of a person indicted for sexual offences against a child from
   1. warning a jury against convicting the accused person solely because the only evidence is the evidence of the complainant
   2. directing the jury about the danger of conviction in the absence of corroboration
4. amend the Evidence Act 2001, in similar terms to section 52 of the Jury Directions Act 2015 (Vic), to require a trial judge who considers that delay in complaining is likely to be raised in a trial for a child sexual abuse offence to inform the jury that
   1. people react differently to sexual abuse and there is no typical, proper or normal response to a sexual offence
   2. some people may complain immediately to the first person they see, while others may not complain for some time, and others may never make a complaint
   3. it is common for a person to delay making a complaint of sexual abuse, particularly if it occurred when they were a child
   4. there may be good reasons why a person may not complain, or may delay complaining about sexual abuse
5. amend the Evidence Act 2001 to provide that the warnings and directions can be
   1. given by a judge to the jury at the earliest opportunity, such as before the evidence is called or as soon as practicable after it is presented in the trial
   2. repeated by the judge at any time during the trial
   3. given by the judge’s own motion, or if requested by either party before the trial or at any time during the trial.

1. Improving professional education for judicial officers

As the Victorian Law Reform Commission acknowledged in its work on sexual offences reform in 2003, discussion and education that foster cultural change in the criminal justice system are essential elements for change.590

The Victorian Law Reform Commission stated that those who work in the system, including police, lawyers, magistrates and judges, are likely to be more responsive to the needs of victim-survivors, and to perform their role more effectively, if they understand the context in which sexual offences commonly occur and the social and psychological aspects of sexual offences that affect complainants.591 These reflections on the importance of education remain just as relevant today.

In most states, it has become increasingly common for judicial officers to attend education programs. The Judicial College of Victoria has been offering such programs, including programs on sexual assault, for many years. We consider such programs should be offered in Tasmania and/or that Tasmanian judicial officers could be encouraged to attend interstate programs.

Changes in relation to understanding the myths and misconceptions about child sexual abuse over the past few years, together with legislative changes, make it important for the courts to be supported with information and training.

Adjunct Associate Professor Henning said that in her experience:

… there’s not a resistance on the part of the [Tasmanian] judiciary to obtaining information to inform themselves in areas of expertise and specialisation where they feel they need to have a great deal more information.592

Professional development of judicial officers can be achieved in various ways. Professor Cashmore spoke to us about educating judges, lawyers and jurors via witness intermediaries, which we discuss in Section 5.2.1.593 She observed that, in New South Wales, the need for witness intermediaries to intervene has diminished as judges have become more alert to the needs of child witnesses.594

Tasmania could draw on training and materials developed in other Australian jurisdictions. For example, the Judicial Commission of New South Wales has recently published a new chapter in the Equality Before the Law Bench Book to raise judicial awareness about the nature and impact of trauma and its prevalence, and how to apply trauma-informed principles to the task of judicial decision making. The chapter also covers trauma and its impact on victim-survivors of child sexual abuse.595 In addition, the Australasian Institute of Judicial Administration has published the Bench Book for Children Giving Evidence in Australian Courts, which was updated in March 2020.596 The Supreme Court could consider developing professional development material based on this bench book.

In Victoria, the Chief Justice of the Supreme Court directs the professional development and continuing education and training of judicial officers.597 In discharging this responsibility, the Chief Justice may direct a judicial officer to take part in specified professional development or continuing education and training activity.598 We consider that Tasmania should adopt a similar provision.

We encourage the Supreme Court to support members of the Bench to actively seek out and participate in professional development and continuous education programs and activities as a matter of course. Judicial officers could attend programs already developed in other jurisdictions, such as the programs offered by the Judicial College of Victoria.

Recommendation 16.16

The Tasmanian Government should:

1. fund the Supreme Court to support the professional development of judicial officers on the dynamics of child sexual abuse and trauma-informed practice
2. consider introducing legislation dealing with the responsibility of the Chief Justice to direct the professional development and continuing education and training of judicial officers, in similar terms to section 28A of the Supreme Court Act 1986 (Vic).

1. After a conviction

In this section, we focus on what happens after an accused person pleads guilty or is found guilty of child sexual abuse. We discuss:

• sentencing in child sexual abuse cases and recent sentencing trends
• the availability of perpetrator programs for child sex offenders in the community
• restorative justice as an alternative to traditional criminal justice responses.

We discuss victim support services in Chapter 17.

1. Sentencing

After an accused person pleads guilty or is found guilty, a sentencing hearing decides their sentence. At a sentencing hearing, the court may hear submissions from the prosecution and defence about:

• the facts of the case, including any mitigating factors (facts or circumstances that could lessen the severity of a sentence) or aggravating factors (facts or circumstances that could increase the sentence received)599
• the offender’s circumstances (for example, the prosecution might refer to the offender’s criminal history, while the defence might state that the offender has shown remorse)
• relevant sentencing principles (for example, the principle of proportionality, which means that the severity of the sentence must fit the seriousness of the crime)
• the type of sentence that might be appropriate (for example, imprisonment or a community-based order).600

A victim impact statement may be read out at a sentencing hearing, either by the victim or by the prosecution on the victim’s behalf.601

After hearing submissions from the prosecution and defence, a court must consider factors in deciding the appropriate sentence to impose on an offender including:

• sentencing practices for the offence type
• the nature and seriousness of the offence
• the impact of the offence on any victim, including any injury, loss or damage caused by the offence
• the personal circumstances of any victim
• whether the offender pleaded guilty and at what stage of the proceedings this occurred
• any mitigating or aggravating factors.602

We heard from victim-survivors about their experience with the sentencing process. Victim-survivor Katrina Munting explained to us that she ‘found the experience of the criminal justice system devastating’ and that she was not sure she could put herself through it again.603 However, she said:

… I felt believed by the court and this helped me. I found his Honour’s disputed facts findings and sentencing remarks really helpful because they came from an impartial and authoritative perspective, and they recognised the pain and suffering I had been through.604

As noted above, when a court is sentencing an offender for child sexual abuse offences, the victim-survivor may make a written statement to the court that describes how they were affected by the offence and can refer to any injury they have suffered. The victim-survivor can request that they or another person acting on their behalf read the statement to the court before the offender is sentenced.605 The Witness Assistance Service at the ODPP can help a victim-survivor prepare their statement.606

The Victims of Crime Service in the Department of Justice also provides support in preparing victim impact statements.607 Catherine Edwards, Manager, Victims Support Services, Department of Justice, said that all counsellors at the Victims of Crime Service provide support with writing and submitting victim impact statements based on the victim’s capacity and their request.608 This includes proofreading a victim’s draft statement, interviewing the victim and working with them.609

Victim-survivors told us of their experiences in making their victim impact statements. Sam Leishman, a victim-survivor, remembers standing up in court and starting to read his statement. He told us:

… I suddenly felt like the biggest person in the room because I was there standing up in front of everyone, including him, speaking up for the child that I once was when I felt that that had never been done before, and that was 36 years after when it first started, and that’s a long time.610

By contrast, victim-survivor Leah Sallese described her experience as ‘really traumatic’. She said:

I had help … to prepare my victim impact statement. They also wrote and rewrote what I had to say. Because everything had to be so carefully put, basically, you know, and that was really traumatic because I was actually trying to say—I wanted to say certain things, and I was told I couldn’t do that, and this is what you have to do, so I felt like a little bit of my power had been taken away … I didn’t really get to say everything I wanted to say, basically.611

1. Sentencing trends

In Tasmania, the maximum penalty that a court can impose on a person for all sexual offences in the Criminal Code Act is 21 years’ imprisonment.612 Courts exercise discretion in sentencing and have established a range of sentences for different offences.613

The approach to sentencing child sex offenders, and the length of prison sentences imposed, have changed significantly in recent years.614

In Tasmania, the number of offenders who receive custodial sentences and the lengths of sentences for child sexual abuse have both increased. The Sentencing Advisory Council’s research paper Sentencing for Serious Sex Offences Against Children confirmed a marked upward trend in sentencing in Tasmania for serious child sexual abuse offences when comparing the period 1 January 2015 to 30 September 2018 with the period 1 January 2008 to 31 December 2014.615

Also, the DPP can appeal against a sentence if they consider a different sentence should have been given.616

The DPP will take the complainant’s view into consideration when determining whether to appeal.617 The ODPP told us that the DPP had undertaken appeals against sentences in child sexual abuse matters, including in the case of Director of Public Prosecutions v Harington, which they considered provided strong guidance to courts in sentencing for these matters.618 In that case, Justice Wood remarked that sentences for maintaining a sexual relationship (now persistent sexual abuse) were increasing, observing that:

To some extent this is an inevitable consequence and a reflection of the greater community understanding of the long-term effects of child sexual abuse. The hearings of the Royal Commission into Institutional Responses to Child Sexual Abuse have provided the community and the courts with valuable insight with regard to the serious impact of abuse on child victims.619

The Sentencing Advisory Council reported that the median sentence for this offence doubled from three to six years in the period from 1 January 2008 to 31 December 2014 to the period from 1 January 2015 to 30 September 2018.620 The DPP told us that the sentencing range for rape is generally higher than the sentencing range for penetrative sexual abuse of a child.621 However, he noted that ‘the sentencing range for penetrative sexual abuse of a child is becoming higher than it used to be. It used to be quite low compared to rape; it is less so now’.622

Prosecutors felt the courts were increasingly recognising the long-term impacts of child sexual abuse and were taking this into account for sentencing, with an upward trend in sentencing for these matters.623

Nevertheless, victim-survivors reported feeling that sentences applied to their abusers were inadequate.624 We discuss data collection for sentencing in child sexual abuse cases in Section 9.

1. Perpetrator programs

Perpetrator programs aim to stop offenders committing further offences, working to change their behaviours and attitudes. This aim recognises that almost all child sex offenders (even those who have been imprisoned) will remain in or re-enter the community. For this reason, interventions directed at abusers are a crucial way to prevent them from harming children.

The Tasmanian Prison Service delivers an adult sex offender program (the New Directions Program) to all people in custody for sex-based offending who are assessed as suitable for the program, except those who refuse to engage in treatment.625

A sex offender may also have to take part in sex offender treatment as a requirement of a community-based sentencing order. A court can direct an offender to have treatment in the community as a condition of a community-based order.626 The Parole Board also has the power to order an offender take part in rehabilitation and treatment as a condition for parole.627 We did not hear any evidence about treatment programs for sex offenders in the community.

In addition, the Tasmanian Government has recently introduced the Dangerous Criminals and High Risk Offenders Act 2021. The Act introduces a scheme for detaining dangerous offenders indefinitely and for making high-risk offender orders, the latter providing for extended supervision of high-risk offenders when released from prison.628 The Act commenced on 13 December 2021.629

To reduce the risk of reoffending, the National Royal Commission emphasised the need to offer support services to child sex offenders moving back into the community.630 However, it did not consider this issue in detail and noted that it did not have the evidence or submissions necessary to make recommendations in relation to it. The National Royal Commission considered that state and territory governments should continually review the adequacy of support services they provide for child sex offenders in the community.631

In 2017, the Sentencing Advisory Council released a research paper on mandatory treatment for sex offenders in custody and in the community.632 The research paper considered the scope and availability of support services for child sex offenders in the community.

The research paper states that there were only limited treatments available for sex offenders in the community at the time of the report.633 It further indicates that treatment relies on independent counselling services accessed through private providers and that it may be difficult to get treatment in the north and North West because of a lack of providers.634 The research paper notes there are no government funded community-based treatment programs for sex offenders in Tasmania.635 It also considers

that it would not be feasible to run group programs in the community in Tasmania because of the small number of offenders involved and the geographic dispersion of these offenders.636

The research paper does, however, note that sex offenders in the community are subject to mandatory intervention by Community Corrections under the Community Based Sex Offender Case Management and Interventions program.637 It notes that all sex offenders under the supervision of Community Corrections are actively managed and that individual treatment is available if this is a requirement of a parole or court order.638 According to the research paper, this reflects the need for community-based treatment for sex offenders who have been released from prison to be individualised and targeted rather than treatment that is simply a repeat of the group rehabilitation programs in prison.639 The research paper states that Community Corrections staff working with sex offenders have received extensive training about sexual offending, managing sex offenders and case management.640

The Tasmanian Government should ensure community-based preventive programs for child sex offenders who are released from prison are properly funded. Such programs should also comply with best practice for treating abusers. In this regard, James Ogloff AM, Distinguished Professor of Forensic Behavioural Science, Swinburne University of Technology, drew our attention to Association for the Treatment of Sexual Abusers practice guidelines that specify standards for treating adults and young people.641 Professor Ogloff explained that these practice guidelines focus on three elements—cognitions (including cognitive distortion, where perpetrators convince themselves that what they are doing is not wrong), behaviours (including strategies for controlling specific behaviours) and emotions (including developing insight into emotional states and the triggers that may cause inappropriate behaviours).642

The National Royal Commission also recommended a national strategy to prevent child sexual abuse (refer to Chapter 18).643 It recommended that the national strategy encompass information and help-seeking services to support people who are concerned they may be at risk of sexually abusing children, highlighting the Stop It Now! program as a potential model to adopt.644

The Stop It Now! program operates in North America, the Netherlands, the United Kingdom and Ireland. It has also operated on a small scale in Queensland.645 The program has been positively evaluated in the Netherlands and the United Kingdom.646

In Victoria, Jesuit Social Services is piloting Stop It Now! for those who self-identify a sexual interest in children and want to address this.647 The pilot started in late August 2022 and was to run for a year.648 The program aims to reduce and eliminate the sexual abuse and exploitation of children, and seeks to achieve this by engaging with adults who may go on to harm children.649

The program’s key feature is an anonymous helpline for people who are worried about their own sexual thoughts and behaviour in relation to children, as well as professionals and family members who are concerned about the behaviour of others.650 The service includes a website with advice, self-help materials and guidance to raise awareness of child abuse.651 While the service can be accessed anonymously and confidentially, it complies with all mandatory reporting guidelines.652

The University of Melbourne will evaluate the effectiveness of the program and its potential for national scale-up.653 We welcome programs such as Stop It Now! that seek to reduce and eliminate child sexual abuse.

Recommendation 16.17

The Tasmanian Government should ensure preventive programs for adults who are at risk of abusing, or have abused, children are available beyond the custodial setting. These programs should be:

1. properly funded
2. align with the practice guidelines issued by the Association for the Treatment and Prevention of Sexual Abusers
3. include a monitoring and evaluation process.

1. Restorative justice

Restorative justice involves people affected by a crime, including the victim-survivor and the offender, communicating about the damage caused by the offence and how it can be repaired. It can include methods such as an exchange of letters, engagement with an institution where the harm occurred and supported conferencing processes with professionals.654

We heard evidence about restorative justice as an alternative to traditional criminal justice responses to child sexual abuse, given their inherent limitations.

Elena Campbell, Associate Director, Research, Advocacy and Policy at the Centre for Innovative Justice, told us that:

Restorative justice approaches recognise that, while the adversarial system meets the imperative of the State in prosecuting wrongdoing, it does very little to meet the needs of the people who have experienced this wrongdoing. By contrast, restorative justice approaches give victim-survivors a voice and validation, essentially allowing them to be heard, to ask questions and to feel that somebody who has caused harm to them has taken steps to repair it.655

Professor Cashmore gave evidence about the potential for restorative justice to play a role in the criminal justice system’s response to child sexual abuse. She told us that there needs to be some serious consideration of other avenues of justice, including certain restorative justice approaches.656 She also drew our attention to a pre-trial diversion program in New South Wales in which familial child sex offenders had to take responsibility by pleading guilty and complying with strict requirements, including disclosing their conduct to family members and their work managers and colleagues, with breaches resulting in the offender returning to court for sentencing.657

The National Royal Commission considered the potential of restorative justice approaches for institutional child sexual abuse. It noted some stakeholder support for restorative justice approaches. However, the National Royal Commission indicated that, based on evidence at the time, it was ultimately not ‘satisfied that formal restorative justice approaches should be included as part of the criminal justice response to institutional child sexual abuse, at least in relation to adult offenders’.658 The National Royal Commission highlighted issues that often make restorative justice approaches unsuitable, including where there is a significant power imbalance, where the victim-survivor does not want to take part or where the passage of time may mean relevant parties are unable or unwilling to participate.659

The National Royal Commission did not express a firm view on whether there is a role for restorative justice in the criminal justice system, either as a sentencing option for offenders or as an alternative for victim-survivors to access justice. However, the National Royal Commission considered that such principles could, and should where appropriate, be embedded in institutional responses to child sexual abuse, including in the National Redress Scheme.660

In its report Improving the Justice System Response to Sexual Offences, the Victorian Law Reform Commission noted strong support for restorative justice for adult sexual offending. It indicated that restorative justice can be an avenue to meet the needs and wishes of a victim-survivor that a criminal justice system cannot provide.661 The Victorian Law Reform Commission noted the risks associated with using restorative justice processes involving children who have been sexually abused and, while it acknowledged that such processes are unlikely to be suitable in many instances involving young victim-survivors, it recommended that suitability be determined on a case-by-case basis rather than by a blanket exclusion.662 We note, however, that Victoria has well-established restorative justice processes in place. We are not aware of Tasmania having a similar system.

We have not made any recommendations on applying restorative justice for institutional child sexual abuse as an alternative to criminal justice. We consider that there may be limited circumstances in which restorative justice could be appropriately applied. This may include some cases where the harmful sexual behaviour is by a child, and for non-sexual offences such as failing to report the abuse of a child.663 Also, as recommended by the National Royal Commission, we consider that restorative justice may have a role to play in institutional responses to child sexual abuse and note that these principles are embedded in the National Redress Scheme. We discuss the National Redress Scheme in Chapter 17.

1. Changing the language of consent in child sexual abuse cases

In this section, we highlight the need for the judiciary and legal professionals to avoid reinforcing outdated understandings of child sexual abuse in sentencing remarks and in making submissions.

The language the judiciary and legal professionals use during a trial and when sentencing a child sex offender can have a powerful and sometimes devastating effect on victim-survivors. It can also have a broader symbolic effect on the understanding of child sexual abuse. In this section, we also discuss how the language of consent can send inaccurate and damaging messages to victim-survivors of child sexual abuse and the broader community, and consider whether there are ways to address this.

Benjamin Mathews, Research Professor, School of Law, Queensland University of Technology, told us that child sexual abuse:

… is inflicted in secret, and usually by an adult who is known to the child or a family member. It can be inflicted in circumstances where force or coercion is clearly apparent, but it can also be inflicted where such coercion is not as stark but where the victim is not developmentally capable of understanding the acts and/or
where the child is in a position of physical, cognitive, emotional or psychological vulnerability such that consent is not freely given.664

The issue of consent is generally not relevant to child sexual abuse offences because, except in the case of similarity of age which we explain below, children under the age of 17 are legally incapable of consenting to sexual contact. Consent is considered relevant in the following two instances:

• when an accused person and victim-survivor are close in age
• when an accused person is charged with rape, rather than with offences specifically related to the abuse of a child.

The closeness (or similarity) in age defence recognises that there might be good reason not to criminalise a young person who is involved in sexual behaviour with another young person of a similar age—for example, where the complainant is 14 and the accused person is 15, and there was genuine consent in the circumstances.665 In relation to these types of offences, we recognise that discussing consent is entirely appropriate.

If a person is charged with the rape of a child or young person, and does not plead guilty to that offence, the prosecution must prove that the complainant did not consent and that the accused person was aware of the lack of consent. This may result in the child or young person being cross-examined on the issue of consent.666

An accused person may argue that they believed the complainant was consenting at the time the sexual penetration occurred.667 That belief on the part of the accused person must be ‘honest and reasonable’. The Criminal Code Act provides that:

However, consent is defined in the Criminal Code Act as meaning ‘free agreement’.669 Section 2A(2) sets out situations in which a person does not ‘freely agree’. Two of these situations may be particularly relevant to whether a child or young person has consented. They include where a person ‘agrees or submits because he or she is overborne by the nature or position of another person’ or where the person is ‘unable to understand the nature of the act’.

Under section 335 of the Criminal Code Act, a person can be charged with rape but convicted of penetrative sexual abuse of a child or young person, or penetrative sexual abuse of a child or young person by a person in a position of authority, if the jury is not satisfied beyond reasonable doubt about lack of consent.670

As discussed in Section 6.1, the sentencing range for rape is higher than the sentencing range for penetrative sexual abuse of a child.671 The DPP told us that, depending on the circumstances, the DPP may charge an accused person with the offence of rape and the jury will be directed that if it is not satisfied beyond reasonable doubt that the complainant did not consent, then it can consider the alternative offence of penetrative sexual abuse of a child.672 Where it is relevant, the jury may also be directed that it can consider the alternative and recently introduced offence of penetrative sexual abuse of a child or young person by a person in a position of authority.

If an accused person is convicted of or pleads guilty to rape, the issue of consent is irrelevant, though physical violence or other factors present at the time of the offence may be relevant to sentencing. Because consent is technically irrelevant, defence counsel should not be able to raise consent in sentencing hearings where a person

pleads guilty or is convicted of rape. If this is done, the prosecutor should object to the issue being raised and the judge should make it clear that consent is irrelevant to sentencing in these circumstances.

When the accused person is convicted of, or charged with, a child sexual abuse offence, or is convicted of that offence as the alternative to rape, consent is also irrelevant unless the defence of similarity of age applies. Evidence we heard suggests the notion of ‘consent’ in child sexual abuse matters perpetuates outdated ideas about where responsibility sits and reveals a limited understanding of the way in which abusers groom children to submit to sexual abuse. Applying the notion of consent has the potential to reinforce victim-survivors’ fears that they are to blame for the abuse, which they are not.

Victim-survivor Leah Sallese told us she believed for decades that, as a child, she had had an ‘affair’ with her teacher. It was not until she was in her forties, when a psychotherapist told her that what she had experienced was child sexual abuse, that she could question the ‘narrative’ in her mind and understand that she was a victim of abuse.673 Ms Sallese referred to the ‘offensive’ language used by the judge in her case, who described the abuse as ‘consensual’, and in the offence itself as it was then known: ‘maintaining a sexual relationship with a young person’.674 She emphasised the importance of changing the language, which has now occurred in relation to the title of the offence.675 We support that change, although we recommend a further change to the language of the provision (refer to Recommendation 16.9). The language prosecutors, defence counsel and judges use can also have a profound effect on the wider community’s understanding of child sexual abuse.

Given the effects of applying the notion of consent on victim-survivors and the wider community, we consider that its use is inappropriate in child sexual abuse matters. The DPP concedes that prosecutors could use the unlawful act being alleged rather than the word ‘consent’ in child sexual abuse matters.676 He stated that:

… you’ll see many judges comment when passing sentence [for persistent sexual abuse] where they say ‘It’s not suggested it’s consensual’. Now, having thought about it, we don’t have to say that, what might be better to say is that what the Crown is alleging is penetrative sexual abuse of a child …677

After our hearings, the DPP wrote to us to suggest one way of changing the language used in the criminal justice system would be to amend the Sentencing Act 1997 (‘Sentencing Act’). He suggested, for example, that a statement could be included in section 11A to the effect that, for child sexual abuse offences, consent is not a mitigating factor and that the court is to presume that the sexual abuse will result in long-term and serious physical and psychological harm to the victim-survivor.678 He considers that such a change would avoid criminal trials and disputed facts hearings requiring the complainant to give evidence on the issue of consent.679

We agree that it could be beneficial to amend section 11A of the Sentencing Act to include a provision to the effect that, for child sexual abuse offences, consent is not a mitigating factor. This would also reflect the existing case law as set out in Director of Public Prosecutions v Harington and Clarkson v The Queen; EJA v The Queen.680 This would mean that the submission, acquiescence or apparent consent of a child is not relevant in sentencing.

We also consider training for the judiciary and legal profession is needed to help ensure the language used in court does not suggest or imply that a child consented to abuse. We discuss prosecutor training in Section 4.2.2 and improving professional education for judges in Section 5.6. The DPP Guidelines should be amended to make it clear that the language of consent should be avoided when prosecuting child sexual abuse offences.

Recommendation 16.18

1. The Tasmanian Government should introduce legislation to amend section 11A of the Sentencing Act 1997 to provide that, in determining the appropriate sentence for an offender convicted of a child sexual abuse offence, the acquiescence or apparent consent of the victim is not a mitigating circumstance.
2. The Director of Public Prosecutions should amend its Prosecution Policy and Guidelines to make it clear that in child sexual abuse matters where consent is not an element of the offence, then the language of consent should not be used by prosecutors.
3. Professional education for judicial officers (Recommendation 16.16) and prosecutors (Recommendation 16.8) should include challenging the myths and misconceptions about consent in relation to child sexual abuse.

1. Responses to children and young people displaying harmful sexual behaviours

Harmful sexual behaviours cover a broad range of behaviours, from those that are developmentally inappropriate and involve only the child displaying the behaviours, to those that involve one child sexually harming another child. In our hearings and in sessions with a Commissioner, we heard from victim-survivors who had been sexually harmed by other children in institutions. Harmful sexual behaviours can have a detrimental and lasting impact on victim-survivors and need to be managed with great care and sensitivity.

While the impact of harmful sexual behaviours is significant, it is generally recognised that punitive responses are often not appropriate because children can display such behaviours for a range of complex reasons, including because of their own sexual victimisation.

In addition, research about children who have displayed harmful sexual behaviours indicates a low rate of recurrence for these behaviours.681 This means that adopting stigmatising criminal justice interventions is unlikely to be effective. Professor Ogloff informed us that harmful sexual behaviours displayed by young people are usually highly treatable, with treatment based on gaining cognitive and emotional control, and often there is a strong element of remorse and a desire to change.682

The National Royal Commission considered that interventions are needed to respond to children who display harmful sexual behaviours, ranging from prevention and early identification to assessment and therapeutic intervention.683 It found that a public health model should be applied to address and prevent problematic and harmful sexual behaviours displayed by children. The Victorian Law Reform Commission also recommended in 2021 that the Victorian Government strengthens the support available to children and young people who have engaged in harmful sexual behaviours.684

The National Royal Commission noted that, for a small group of children, a child protection or criminal justice response may be necessary.685 It recommended state and territory governments ensure there are clear referral pathways for children who have displayed harmful sexual behaviours to access expert assessment and therapeutic intervention, regardless of whether the child is engaging voluntarily, on the advice of an institution or through their involvement with the child protection or criminal justice system.686

We discuss responses to children who have engaged in harmful sexual behaviours in Chapter 21. In that chapter, we recommend funding be increased for specialised therapeutic services for young people in the context of a statewide, whole of government framework for responding to harmful sexual behaviours, so all children and young people can access the appropriate responses for their situation. Here we consider whether there are opportunities in the youth justice framework for courts to direct the small number of young people who have displayed harmful sexual behaviours and are charged with an offence to therapeutic services.

We note that the Tasmanian Government has developed the Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System, which outlines the strategic direction for Tasmania’s youth justice system for the next 10 years.687 The draft blueprint’s aim is to improve the wellbeing of children, young people and their families while addressing the underlying drivers of offending behaviours, reducing offending and improving community safety. We welcome this initiative and consider there is an urgent need for youth justice system reform. We discuss the draft blueprint further in Chapter 12.

There is potential in the existing legislative frameworks for courts to divert young people who have displayed harmful sexual behaviours to specialised therapeutic services. The Youth Justice Act 1997 (‘Youth Justice Act’) provides the legislative framework for administering youth justice in Tasmania. The Youth Justice Division of the Magistrates Court deals with most young people charged with criminal offences. But the Supreme Court deals with more serious offences such as aggravated sexual assault, rape and persistent sexual abuse of a child.

Instead of proceeding to sentence a young person, the Magistrates Court can do one of the following:

• Order the young person to attend a community conference.688 If the Court makes such an order, it can require the young person to enter into an undertaking to do anything else that may be appropriate in the circumstances.689 The Court can then dismiss a charge after the young person takes part in the community conference.690
• Defer sentencing of a young person to allow them to take part in an intervention plan.691 An intervention plan is a plan that specifies the activities or programs that a young person is expected to undertake while on bail.692

In addition, when sentencing a young person under the Youth Justice Act, the Magistrates Court can order that the young person undergoes psychiatric or psychological treatment as a special condition of a probation order or a community service order.693

We note that, where a young person is charged with a family violence offence, the court also has the power to order a rehabilitation program assessment and direct the young person submit to that assessment.694 This power is limited to offences committed by a person against their spouse or partner.695

When a young person is sentenced in the Supreme Court, the court has discretion to sentence the person under the Sentencing Act or the Youth Justice Act. In sentencing a young person under the Sentencing Act, the court can:

• order release of the offender if the offender undertakes to comply with specified conditions
• make a community correction order with special conditions if the young person has reached 18 years, which could include a treatment program order.696

We consider the courts should have broader powers to refer young people to rehabilitation assessments and supports. In Chapter 21, we recommend that the Magistrates Court be given the power to divert a young person who has engaged in harmful sexual behaviours from the criminal justice system by adjourning the criminal proceedings to enable the young person to take part in therapeutic treatment (Recommendation 21.9). They could then discharge the young person after completing the treatment.

In addition, we consider that courts should use their powers to direct young people who have been charged with criminal offences and who have displayed harmful sexual behaviours to specialist therapeutic services, whenever this is appropriate.

Recommendation 16.19

We encourage the courts to consider using their powers to direct young people engaging in harmful sexual behaviours who are charged with a criminal offence to specialist therapeutic services.

1. Monitoring and evaluation

There is a lack of comprehensive data on child sexual abuse offences in the Tasmanian criminal justice system. In its report Improving the Justice System Response to Sexual Offences, the Victorian Law Reform Commission highlighted the challenges of building an evidence base for reform without the benefit of regularly published data.697

Of the child sexual abuse matters that are reported to police (and we know that many are not), we heard that only a small proportion result in prosecution and conviction—in New South Wales, about 12 per cent of reported cases (and we heard this is broadly consistent with other studies).698 Other data from New South Wales shows that, of the cases in which a person pleads guilty or goes to trial, almost half are convicted of at least one child sexual abuse offence.699 Conviction rates for cases that are prosecuted in Tasmania are higher than in New South Wales.

The DPP’s Annual Report 2021–22 states that:

… between 2017 and 2021 the Office finalised 231 sexual assault cases involving child complainants, with a conviction rate of 67.33% and a discharge rate of 23.9%. A previous study between 2010 and 2014 showed a similar result. The conviction rate was higher than that for all crimes whereas the discharge rate was significantly lower than that for all crimes.700

The report attributed the high conviction rate to the DPP Guidelines ensuring early contact with complainants, the conduct of matters by experienced prosecutors and the pre-charging advice service the ODPP provides to Tasmania Police, which was said to mean that the ‘correct charges are laid and additional evidence is obtained at an early stage’.701

Figures provided to our Commission of Inquiry on conviction rates for sexual assault crimes (which would have included some adults who reported child sexual abuse) were similarly high.702 These figures showed a conviction rate of 67.53 per cent and a discharge rate of 23.3 per cent.703

Although the ODPP’s figures are encouraging, we do not know what proportion of these cases involved institutional child sexual abuse. Moreover, the ODPP figures do not show the attrition rate between cases reported to Tasmania Police and cases that get a conviction. Research has consistently shown that the majority of sexual offences are not reported, preliminary enquiries made to police do not always result in a formal report, and only some cases reported to police proceed to prosecution. If police do not encourage victim-survivors to formally report an offence, or if a charge is never laid because of the ODPP’s pre-charging advice, only a low proportion of reports of child sexual abuse proceed through the criminal justice process. For example, a study on the attrition of sexual offence incidents in the Victorian criminal justice system covering the period 2015–16 to 2016–17 shows that only one in seven sexual offence incidents reported to police was ultimately proven in court and that attrition was ‘highest during the police investigation stages of the justice system process’.704 Police formally identified an offender for about half (48 per cent) of the incidents reported and laid charges against about half (52 per cent) of those offenders they identified.705 We note these figures relate to sexual offence incidents generally and are not confined to sexual offences against children or offences occurring in an institutional context.

For this reason, we consider the Tasmanian Government should ensure data is collected on the proportion of child sexual abuse cases reported to police that result in prosecution and conviction. This information should be compared with statistics from other Australian jurisdictions where such data is collected. The analysis of this data should consider jurisdictional differences in systems (for example, in Tasmania a magistrate cannot refuse to commit a matter).706 Such a comparison would provide a more objective means of assessing the performance of the Tasmanian criminal justice system in investigating, charging and convicting child sexual abuse offenders than currently exists.

Attrition data—indicating when and why cases stop progressing through the criminal justice system—is also required to help identify factors and barriers that have contributed to decisions by victim-survivors to withdraw from criminal justice processes. This could also inform future policy and reform.

It should be possible to track how many incidents of child sexual abuse offending progress through the criminal justice system to be proven in court and at what points incidents ‘exit’ the system. We note that the ODPP already collects some of this data, including the reasons for matters being discharged, and reports on it in its annual report.

In respect of the ODPP’s pre-charging advice service, the ODPP keeps a record of the number of advice files provided to Tasmania Police in which the ODPP recommended, in respect of child sexual abuse offences, that: 

• charges be laid
• charges not be laid
• further police enquiries be made.

The ODPP has provided our Commission of Inquiry with figures for 2016–17 to 2022–23 (up until 5 May 2023). These are shown in Table 16.1.707 This table indicates that, in some years many matters reported to police did not result in charges being laid, although in recent years the proportion of cases where charges are laid appears to be increasing.

Table 16.1: Office of the Director of Public Prosecutions, Pre-charge advice files relating to child sexual offences provided to police, 2015–2023708

Year	Charges laid	Charges not laid	Further police enquiries be made	Total (charges laid or not laid)	Percentage of cases with charges laid, of those with a charge laid or not laid
2015–16	19	54	15	73	26%
2016–17	17	58	19	75	23%
2017–18	59	66	50	125	47%
2018–19	63	89	33	152	34%
2019–20	72	98	26	170	42%
2020–21	44	46	14	90	49%
2021–22	63	59	26	122	51.6%
2022–23	46	59	14	105	43.8%

Source: Office of the Director of Public Prosecutions, Advice Provided Statistics 2015–2023, 5 July 2023.

The National Royal Commission recommended that the DPP monitors the number, type and success rate of appeals in child sexual abuse matters to identify any areas of potential reform and to ensure any National Royal Commission recommendations are working as intended.709 We acknowledge that, in recent years, police and the ODPP have made improvements including:

• developing a specialised unit within the ODPP
• developing and expanding the Witness Assistance Service
• implementing early engagement with victim-survivors
• establishing the ODPP’s pre-charging advice service.

Nevertheless, throughout this chapter we have identified areas where it is still difficult to assess the performance of the police and the ODPP without other transparency measures.

Commissioner Hine told us Tasmania Police ‘holds a wealth of data across many different systems’.710 He said that ‘currently more than 10 years of offence reporting data is at hand from which we can examine trends across offence types, locations, clearance and other factors over time’.711 He also said integration and reporting on this data will improve with the upcoming migration of more applications into Atlas, the Tasmania Police data system.712

The DPP told us that the ODPP’s in-house file management and record keeping methods need to be modernised to better record data and automatically generate reports. He said that the Department of Justice is undertaking a project (called ‘Justice Connect’) to improve information sharing between stakeholders. The DPP said that it is not clear how this system will benefit the ODPP.713 We recommend that the Tasmanian Government supports the ODPP to improve its data collection.

We also consider that more work needs to be done to collect data about child sexual abuse across the criminal justice system. We therefore recommend the Tasmanian Government prioritises collecting comprehensive data on the criminal justice system’s response to child sexual abuse.

Although data is important, it only tells part of the story. Victoria Police noted its view that not every victim-survivor wants to go through the court process, and prosecution is not always the goal and only measure of ‘success’.714 We agree.

In Section 3.2.2, we recommend that specialist police units measure and periodically report on victim-survivor satisfaction with the specialist police units (refer to Recommendation 16.1).

We also recommend below that periodic qualitative surveys be conducted with victim-survivors of child sexual abuse. These should focus on their experiences and satisfaction with the criminal justice system. Such surveys could measure whether the victim-survivor felt listened to and believed, whether they understood the process and whether they were kept informed of the progress of their case.

Recommendation 16.20

1. The Department of Justice should:
   1. prioritise collecting and publishing key data about institutional child sexual abuse, including
      1. the number of reports of child sexual abuse made to police
      2. police, prosecution and court outcomes of reports, and reasons for outcomes, including the reasons why cases did not proceed
      3. the time between reporting, charging or a decision not to progress, and prosecution
      4. whether the abuse took place in an institutional setting
      5. basic demographics of victim-survivors and alleged perpetrators (for example, age, gender and Aboriginal status)
      6. trends in relation to particular groups, including Aboriginal people
   2. support the Office of the Director of Public Prosecutions to improve its data collection for child sexual abuse cases so it can effectively monitor
      1. the cases on which police seek advice, that proceed to court and that are discontinued, including the reasons for discontinuance
      2. the number, type and success rate of appeals in child sexual abuse matters
   3. cause periodic surveys to be conducted and published with victim-survivors of child sexual abuse on their experience and satisfaction with the criminal justice system, including on whether the victim-survivor
      1. felt listened to
      2. felt believed
      3. understood the process
      4. was kept informed of the progress of the case.
2. The Sentencing Advisory Council should periodically review trends in sentencing for child sexual abuse offences in Tasmania and compare them with sentencing outcomes for equivalent offences in other Australian jurisdictions.

1. Conclusion

As recognised by the National Royal Commission, the criminal justice system is unlikely ever to provide an easy or straightforward experience for a victim-survivor of institutional child sexual abuse. The very nature of the crime and the criminal justice system mean that the experience is likely to be distressing and stressful.715 However, we understand that the criminal justice system represents an important mechanism to condemn child sexual abuse, hold abusers to account and intervene to stop abusers offending.

The criminal justice system should do everything possible to avoid retraumatising victim-survivors, who must be listened to, respected and treated with dignity in all their interactions with the criminal justice system. A victim-survivor’s experience of the system can be shaped by how they are spoken to and the support they receive. We heard that, for some people, aspects of the criminal justice process were ultimately affirming and rewarding, particularly when victim-survivors felt heard and believed and the offending was condemned.

While every victim-survivor of child sexual abuse has individual experiences and needs, some common themes emerged from the victim-survivors who shared their experiences with us. They spoke of how difficult it was to recount their experience multiple times and how important it is to be offered support throughout the criminal justice process.

We heard about the importance of victim-survivors having a voice, being believed and not having damaging myths or language wielded against them throughout the criminal justice process. We also heard about how important it is for police and prosecutors to speak to victim-survivors with kindness, care and patience, and to keep them informed about the progress of their case.

We accept that the criminal justice system, as an adversarial system, is not well equipped to respond to the complex and sensitive issues that arise from child sexual abuse. We consider recent reforms, such as introducing a witness intermediary scheme and using special measures to support complainants in giving evidence, can help alleviate some of the system’s limitations, but we accept victim-survivors will always find reporting offences and giving evidence a very difficult process.

We welcome recent reforms to the criminal justice system but consider more can be done.

Like the National Royal Commission, our recommendations aim to reduce the extent to which a victim-survivor might feel marginalised, vulnerable, attacked or retraumatised.716

Our key recommendations in this chapter include:

• establishing specialist police units for child sexual abuse investigations
• ensuring police and prosecutors are trained on the nature and dynamics of child sexual abuse and trauma-informed care
• implementing independent oversight of investigations of allegations of child sexual abuse involving police officers
• assisting juries to assess the evidence of child witnesses through jury directions
• improving professional development for judicial officers and legal professionals
• changing the language of consent in child sexual abuse offence cases
• improving data collection across the criminal justice system.

Underlying all our recommendations is the need to improve education and training for police, prosecutors and the courts, as well as the wider community, on the nature and dynamics of child sexual assault and trauma-informed practice.